Order 96C: Civil Restraining and Behaviour Orders ^[1]

Preliminary

1. Definitions

1. In this Order—

“the 2001 Act” means the Children Act 2001;

“the 2006 Act” means the Criminal Justice Act 2006 (No. 26 of 2006);

“the 2023 Act” means the Criminal Justice (Miscellaneous Provisions) Act 2023 (No. 24 of 2023);

“behaviour order” has the meaning given to it by section 257D(1) of the 2001 Act, (inserted by section 162 of the 2006 Act);

“civil order” has the same meaning as in section 113(1) of the 2006 Act;

“relevant conduct” has the same meaning as in section 27 of the 2023 Act;

“section 28 order” means an order under section 28 of the 2023 Act.

Civil Orders under the 2006 Act

2. Application for civil order

2. An application pursuant to section 115(1) of the 2006 Act for a civil order may be made at any sitting of the Court for the court area in which the respondent resides at the time the application is made.

3. Notice of application

3.(1) Notice of an application for a civil order may be in the Form 96C.1, Schedule C. A copy or copies of the behaviour warning or behaviour warnings or of the written record of the behaviour warning or behaviour warnings issued to the respondent in accordance with section 114 of the 2006 Act which are intended to be relied upon in the application must be attached to the notice of application.

(2) A copy of the notice of application must be served upon the respondent in accordance with Order 10 not later than 14 days before the date fixed for the hearing of the application. 

(3) The original notice of application must be lodged with the Clerk not later than two days before the date fixed for the hearing of the application.

4. Form and service of civil order

4. (1) A civil order may be in the Form 96C.2, Schedule C.

(2) The applicant must cause a copy of any civil order to be served on the respondent in accordance with Order 10.

5. Application to vary or discharge a civil order

5.(1) An application pursuant to section 115(7) of the 2006 Act for an order discharging or varying a civil order may be made at any sitting of the Court for the court area in which the person subject to the civil order resides at the time such application is made.

(2) Such an application must be preceded by the issue of a notice of application in the Form 96C.3, Schedule C.

(3) A copy of the notice of application (together with true copies of the notice of application for a civil order and attachments thereto and of the civil order) must be served upon the person referred to in section 115(8) of the 2006 Act in accordance with Order 10 not later than seven days before the date fixed for the hearing of the application.

(4) The original notice of application to vary or discharge and attachments must be lodged with the Clerk not later than two days before the date fixed for the hearing of the application.

6. Variation or discharge of a civil order

6.(1) Where the Court varies the terms of a civil order, the terms of any such variation may be indorsed upon the original or a copy of the civil order and re-signed by the Judge.

(2) Where an order discharging or varying a civil order is made in a Court area different from the Court area in which the civil order to which the application relates was made, the Clerk shall send to the Clerk assigned to the Court area wherein the civil order was made notice that the civil order has been discharged, or a copy of the civil order as varied, as the case may be.

Behaviour Orders under the 2001 Act

7. Application for behaviour order

7. An application pursuant to section 257D(1) of the 2001 Act for a behaviour order may be made at any sitting of the Children Court for the court area in which the respondent resides at the time the application is made.

8. Notice of application

8.(1) Notice of an application for a behaviour order may be in the Form 96C.4, Schedule C. A copy or copies of the behaviour warning or behaviour warnings or a copy of the written record of the behaviour warning or behaviour warnings issued to the respondent in accordance with section 257B of the 2001 Act which are intended to be relied upon in the application must be attached to the notice of application.

(2) A copy of the notice of application must be served upon each of the persons referred to in section 257D(8) of the 2001 Act not later than 14 days before the date fixed for the hearing of the application.

(3) The original notice of application and attachments must be lodged with the Clerk not later than two days before the date fixed for the hearing of the application.

9. Form and service of civil order

9.(1) A behaviour order may be in the Form 96C.5, Schedule C.

(2) The applicant must cause a copy of any such order to be served on each of the persons referred to in section 257D(8) of the 2001 Act.

10. Application to vary or discharge a behaviour order

10.(1) An application pursuant to section 257D(7) of the 2001 Act for an order discharging or varying a behaviour order may be made at any sitting of the Children Court for the court area in which the child subject to the behaviour order is residing at the time such application is made.

(2) Such an application must be preceded by the issue of a notice of application in the Form 96C.6, Schedule C.

(3) A copy of the notice of application (together with copies of the notice of application for a behaviour order and attachments thereto and of the behaviour order) must be served upon each of the persons referred to in section 257D(8) of the 2001 Act not later than four days before the date fixed for the hearing of the application.

(4) The original notice of application for discharge or variation and attachments must be lodged with the Clerk not later than two days before the date fixed for the hearing of the application.

11. Variation or discharge of a civil order

11.(1) Where the Court varies the terms of a behaviour order, the terms of any such variation may be indorsed upon the behaviour order and re-signed by the Judge.

(2) Where an order discharging or varying a behaviour order is made in a Court area different from the Court area in which the behaviour order to which the application relates was made, the Clerk shall send to the Clerk assigned to the Court area wherein the behaviour order was made notice that the behaviour order has been discharged, or a copy of the behaviour order as varied, as the case may be.

Section 28 Orders under the 2023 Act

12. Venue

12. Proceedings under Part 5 of the 2023 Act may be brought, heard and determined before:

(i) a sitting of the Court for the Court District in which the applicant or the respondent resides or is treated by the Court in accordance with section 36(2) of the 2023 Act as residing, or

(ii) a special sitting of the Court arranged in accordance with section 38 of the 2023 Act.

13. Section 28 Order 

13.(1) An application to the Court under section 28(1) of the 2023 Act for a section 28 order must be preceded by the issue and service upon the respondent of a summons in the Form 96C.7, Schedule C.

(2) An order of the Court granting the application may be in the Form 96C.8, Schedule C.

14. Interim order inter partes

14.(1) When a summons for a section 28 order has been issued, an application to the Court in accordance with section 28(12) of the 2023 Act for an interim section 28 order (save where made on or in the course of the hearing of an application for a section 28 order) may be made by motion on notice in the Form 96C.9, Schedule C, to the respondent (such notice and a copy of the grounding affidavit or information to be served on the respondent at least two clear days before the hearing) and grounded on an affidavit sworn by the applicant, or on information on oath and in writing sworn by the applicant in the Form 96C.10, Schedule C.

(2) An order of the Court granting the application may be in the Form 96C.11, Schedule C.

(3) In any case under this rule, the Court may hear evidence viva voce and on oath.

15. Ex parte order

15.(1) Whether or not a summons for a section 28 order has been issued, an application to the Court in accordance with section 28(7) of the 2023 Act for an ex parte section 28 order may be made at any sitting of the Court mentioned in rule 12 and grounded on an affidavit sworn by the applicant, or on information on oath and in writing sworn by the applicant in the Form 96C.10, Schedule C.

(2) An order of the Court granting the application may be in the Form 96C.11, Schedule C.

(3) In any case under this rule, the Court may hear evidence viva voce and on oath.

16. Vary or discharge section 28 order

16.(1) An application to the Court under section 29 of the 2023 Act to vary or discharge a section 28 order must be preceded by the issue and service of a summons in the Form 96C.12, Schedule C.

(2) An order of the Court granting the application may be in the Form 96C.13, Schedule C.

17. Further section 28 order

17.(1) An application to the Court under section 30 of the 2023 Act for a further section 28 order must be preceded by the issue and service of a summons in the Form 96C.7, Schedule C.

(2) An order of the Court granting the application may be in the Form 96C.8, Schedule C.

18. Clerk to supply copies of orders

18. Where the Court makes, varies or discharges a section 28 order or makes a further order under section 30 of the 2023 Act, the Clerk must, in accordance with section 35(1) of the 2023 Act, give or send a certified copy of the order in question as soon as practicable:

(a) to the applicant, and

(b) to the respondent,

by ordinary prepaid post, and

(c) where an application has been made by a member of the Garda Síochána acting in accordance with section 31 of the 2023 Act, to that member, and

(d) to the member of the Garda Síochána in charge of the Garda Síochána station for the area in which the person, for whose benefit the order is made, resides, and

(e) where the order in question is a variation or discharge of a section 28 order and the person for whose benefit the order was made had previously resided elsewhere, to the member of the Garda Síochána in charge of the Garda Síochána station for the area in which that person had so resided, but only if that member had previously been sent a copy of the section 28 order, or any order relating thereto under section 35(1) of the 2023 Act and this rule, and

(f) where the order in question prohibits or restricts the respondent from approaching a specified place and the Court so directs, to the member of the Garda Síochána in charge of the Garda Síochána station for the area in which the specified place is situated, by prepaid registered post or, where so agreed with the member of the Garda Síochána concerned, by electronic mail.

19. Service

19.(1) A summons issued under the 2023 Act in accordance with this Order must be served by the Clerk by prepaid ordinary post upon the person to whom it is directed at least seven days before the date fixed for the hearing of the application. Where, however, the Clerk, having consulted the Judge for the time being assigned to the Court District in which the summons is being issued, otherwise certifies on the summons that the proceedings are urgent, the summons may be served at least two days before the date fixed for the hearing.

(2) The Clerk must endorse on the original of every such summons served the date and place of posting of the envelope containing the copy summons for service and the party to whom the envelope was posted (or such other particulars of service as are appropriate to the case) and that endorsement shall be prima facie evidence of such service.

(3) The summons shall be deemed to be issued when it has been signed by the Judge or the Clerk. It shall be deemed to be served at the time at which the said envelope would be delivered in the ordinary course of post. 

(4) Without prejudice to the power of the Court to give such a direction of its own motion, a request for a direction under section 34(4) of the 2023 Act may be made viva voce at the time the order is made or if made subsequently may be made ex parte at any sitting of the Court for the Court District.

(5) The Court may, for the purpose of ensuring the expeditious hearing of applications under the 2023 Act, direct or deem sufficient service of a document under the 2023 Act by other means, including by electronic mail, where it is satisfied that such service is likely to bring, or has brought, the document to the attention of the person to be served.

20. Direction in relation to cross-examination or for evidence through television link

20. The Court may give a direction under section 32 or section 39 of the 2023 Act at any time in the course of proceedings under the 2023 Act–

(a) upon a request for such a direction made by either party or a witness affected by a proposed cross-examination, and having heard the parties, or

(b) on its own motion and having heard the parties,

and may adjourn the proceedings for the purposes of section 32 or, as the case may be, section 39, of the 2023 Act for such period as it considers appropriate in the circumstances, and may make such orders and give further directions in accordance with section 32 or, as the case may be, section 39, of the 2023 Act accordingly.