Legal Protection

The Domestic Violence Act 1996 provides for the protection, safety and welfare of married couples, cohabiting couples, parents, parents who have not lived together as a couple, children and any other people who live in a domestic relationship. Safety and welfare includes the physical, emotional and mental welfare of the person in question.

The Non-Fatal Offences Against the Person Act 1997 is also relevant in domestic abuse situations, including where a couple is unmarried or not cohabiting. Under this Act a person can be charged with the offence of assault, assault causing harm or serious harm, or with the offence of making threats to kill or cause serious harm and stalking. The Gardai will assist in instances of stalking and harassment and may recommend an Anti-Social Behaviour Order.

Under the Domestic Violence Act the following orders may be obtained:

• Safety Order
• Barring Order
• Protection Order

If any of these orders is breached by the offender the Gardai have immediate powers of arrest. The matter will come before the courts as a criminal matter and is heard in open court. All of these orders can be appealed.

For a detailed overview of these orders and who can apply click here.

Do I need a solicitor?

If you are applying for an order under the Domestic Violence Act, it is a good idea to get a solicitor. He or she will have a detailed knowledge of the options available and how things work. You don't need a solicitor for the first stage of applying, but a solicitor can be important if you go to court.

If the Gardai are taking a case against your abuser for Breach of Order (Protection, Safety, or Barring) or under the Non-Fatal Offences Against the Persons Act, 1997, you do not need a solicitor, as the prosecuting Garda/solicitor will be making the case against the abuser. However, you may want to get legal advice from a solicitor so you know what to expect.  You could check with your local Citizens Information Centre about their Free Legal Advice Clinics. These clinics offer advice free on a first come first served basis. The solicitors and barristers who staff these clinics will not be able to represent you in court.

How do I find a solicitor?

One option is to contact your nearest women's refuge/support service. They will give you names of solicitors who have experience of domestic abuse cases.

If you are thinking of applying for an order, you will need a solicitor familiar with family law. 

How much will it cost to hire a Solicitor?

The cost of hiring a solicitor varies. If you do not enough money and you are thinking about applying for an order, you can apply for Civil Legal Aid through your local law centre.

What is Civil Legal Aid?

The Legal Aid Board provides legal aid and advice in civil cases to people who are on low incomes. The Board will provide the services of a solicitor and, if necessary, a barrister, at low cost.

Issues covered by Legal Aid Board services include:

• domestic violence
• legal separation
• divorce
• maintenance
• custody of children

How do I apply for Civil Legal Aid?

You can contact any of the law centres run by the Legal Aid Board for an appointment. There are 32 law centres across Ireland - click here for more information. All law centres have solicitors who are familiar with domestic abuse and the law. You may have to wait a short time before getting an appointment at a law centre, though priority is usually given to domestic abuse cases when a court date is known. If a date has already been set for your court hearing, they will try to see you before the court date.

The law centre staff will assess your income to decide if you are eligible for Legal Aid. They will base their calculations on your 'disposable' income - that is, what is left after certain allowances are made for costs such as dependents, rent, mortgage repayments and income tax, etc. They can advise you about what legal remedies are available.

How much do I have to pay if I get Legal Aid?

All people receiving Legal Aid must pay a contribution for services. The amount you pay for services will depend on your disposable income. If you are dependent on social welfare, you will pay the minimum. If you have a higher income but are still eligible, your contribution will be more.

How do I get ready for going to court?

It is important to prepare for going to court. You will need to prepare evidence and concentrate on the most essential things that need to be said to the judge in support of your application. This is the time to get a solicitor if you haven't got one already. S/he will guide you through the preparations and answer any questions you have.

Can I get support for going to court?

Yes. Most women's refuges and/or support services offer support to women going to court. The refuge/support worker can meet with you before the court hearing, and talk through what is likely to happen. She can help you with arrangements you may need to make, gather documents and other such preparation. She will not be able to go into the court with you unless you make an application for her or a family member to do so.  This application can be made through the Family Court Clerk’s office.  Your partner will be informed of your application and may do likewise.  It is the judge’s decision as to whether these applications are granted. If the support worker does not go into the court with you she will wait for you outside.

What will happen at the court hearing for an order under the Domestic Violence Act?

The hearing is held in private. The only people allowed in are you and your solicitor, your partner and his solicitor, plus any witnesses including the Gardai. The media may be allowed in by permission of the Judge but may not report on specific cases.  Members of the public are not allowed into family court hearings.

The judge will hear the evidence from both sides. You may be asked to give your evidence to the court. Your solicitor will ask you questions that let you talk through your evidence step by step. Your partner and any witnesses may also be asked to give evidence. If, at any time, you don't understand what you are being asked, ask the judge to explain.

After the evidence has been given, the judge will make a decision on whether or not to grant an order. If it is granted, it is effective as soon as your abuser has been informed.

In some situations, the solicitors make most of the representations in court, and you and your partner may only have to give brief evidence, if any. However, it is more likely that you will be asked to give your evidence to the court.

What will happen at the court hearing for a case under the Non-Fatal Offences against the Persons Act?

The prosecuting Garda/solicitor will make the case against the abuser on your behalf. This means that you do not have a solicitor to represent you directly, though the prosecuting Garda/solicitor may ask you to answer questions as a witness. The case is heard in public court.

It is a good idea to get legal advice from your solicitor if possible before the court hearing.

It may also be helpful to:

• Introduce yourself to the Garda taking the case.
• Ask to see your statement before the court hearing, so that  you can remind yourself of what you said.
• Ask the Gardai to introduce you to the prosecuting Garda/Solicitor

Evidence for Court

"The hardest thing was to stay focused and not get into talking generally about the abuse or getting upset. Because I didn't have physical injuries it was important that I was clear and told him the whole story as it happened to me"

The judge makes her/his decision based on the evidence presented at the court hearing. The judge needs to hear about:

• the effects of the abuse on you and the children
• any fears you have about your safety and the children’s safety
• the effects on your mental and physical health

The Judge needs to be told the truth so that she/he can make a decision. It is important that you describe what happened clearly and cogently. Talking this through with you solicitor or women's support service worker may be helpful. Other evidence that fits with your description of events is very helpful to confirm what happened.

What may be useful as evidence?

• dates and descriptions of the most serious incidents of emotional, mental, sexual and/or physical abuse
• records from your doctor or the hospital detailing injuries
• records/reports from your doctor and/or the hospital detailing the stress you experienced as a result of the abuse
• records/reports from the Gardai detailing times when they were called to the house
• signed statements of complaint that you have made to the Gardai
• records/reports from a social worker or counsellor who is familiar with your situation
• statements from friends, family, neighbours or anyone else who witnessed the abuse
• photographs of injuries or damage to property, with the date and name of the person who took the photo
• records/reports of visits to any women's refuge/support service, rape crisis centre or other support service

The evidence that can be used to support your case depends on your individual situation and the particular case you are taking. You may find it helpful to write down what happened and when it happened. You can do this at any time, and keep notes or a diary in a safe place. If you don't feel able to write it down yourself, or fear it is not safe, you could ask a friend to do it. You could tell a friend what happened, and he/she can write it down and keep the notes for you.

What arrangements can be made for the children?

If you leave the relationship, you may need to think about what kind of arrangements you want to make with your ex-partner in relation to the children.

Arrangements can be made in several ways:

• You can agree on arrangements informally between yourself and your ex-partner without the involvement of specialist services.
• You can agree on arrangements between yourself and your ex-partner through your solicitor, without going to court.
• You can take legal action and go to court for a decision on arrangements.
• Your partner can take legal action and go to court for a decision on arrangements.
• You and your partner can meet with the Family Mediation Service to try to make arrangements without taking legal action and going to court.

Will the children live with him or me?

If you bring the children with you when you leave (or they stay with you in the home and he leaves), they will usually be able to stay with you unless your partner applies to court for custody and is successful.

'Custody' is the legal term for the day-to-day care and management of the children. If you do not bring the children with you when you leave the relationship (or they leave with him), you can apply to court for custody. If you are successful, the children will live with you.

Custody is most likely to become an issue if you are married and the marriage breaks down. Custody can be awarded to one parent only (full custody) or can be shared between both parents (joint custody). The court will make a decision in the best interests of the child or children.

If you have a barring order that was granted on the basis that your partner is a danger to you and your children, arrangements relating to custody issues may be put in place as part of the court hearing for the barring order.

If the children live with me, does he have the right to see them?

If you and your ex-partner cannot agree on visits informally between you, he can apply to the court for an 'access' order to give him rights to see the children. Access is the name for legally arranged visits or contact between the child and the parent that does not live with the child. In law, contact between a child and her/his parents is usually facilitated. Considering this, the father is likely to get access unless there is a proven reason as to why he should not.

If there is proven evidence of abuse of the child by the father, access may be denied or supervised. The HSE investigates all allegations of child abuse. Supervised access means that someone else will have to be present at all times during his visit with the children.

The same applies in reverse: if the children are living with him, and you want to get access, you can apply to court for an access order if you cannot make arrangements informally between yourselves.

Do I have to meet him to exchange the children for visits or access?

If the court decides that visiting or access by the non-residential parent is in the best interest of the child, the court may set the time, place and duration of the visits or access. You have the right to put forward your opinion on the arrangements that you would like to see in place. Consider not only what you think is best for the children, but also your own safety and convenience. It is important that you prepare for this before going to court and get legal advice from your solicitor.

If you feel the arrangements are unsafe, there are a number of steps you can take to improve the situation. You could:

• Ask someone else to be involved, such as a friend or family member.
• Arrange to exchange the children in a public place where you will have help close by and witnesses if he becomes abusive. For example, in a shopping centre with security cameras, in a Family Resource Centre, or near the Garda station.
• Apply to the court for the arrangements to be changed. Ask your solicitor for help if you are in this situation.

If you have a barring order, visiting or access arrangements may have been put in place as part of the court hearing for the barring order.  When applying for a barring order it is good to have thought about what arrangements might suit you and the children.

Do I have to let him see the children before the court hearing on access?

If you genuinely believe that the children will not be safe, you do not have to let him see them. However, in general it is considered important by the court for children to have the opportunity to see both their father and mother.