CAN YOUR DOG APPLY FOR A BARRING ORDER?

We often read in newspapers about terrible cases where animals have been mistreated. The general outcome is that the person who abused the animal will be fined or in extremely rare cases they might be sent to prison. 

I am of the view that at some point in the not too distant future, an abused animal will be able to sue its owner for the equivalent of a barring order. This may sound ridiculous and one of the reasons it may sound foolish is because an animal does not have legal personality and an animal cannot issue proceedings in its own name. That is the standard legal thinking. 

We have an amount of animal welfare law and there are numerous endangered species statutes but the fundamental legal status of non-humans has remained unchanged. The philosopher Jeremy Bentham said that the only arbiter of how we treat animals is not “can they reason” nor “can they talk” but “can they suffer”.

There is a famous English case called Somerset v. Stewart, which was decided in 1772 when the English High Court decided that a slave could bring a set of proceedings even though that slave at the time had the legal status of an animal i.e. he was a non-person. The argument is often made that animals cannot bring legal proceedings because they cannot personally appear in court and cannot explain themselves. Children however or persons on their behalf can bring proceedings. Mentally incapacitated adults can bring proceedings. There are any number of cases where non-humans have been held to be legal persons like ships, limited companies, partnerships and even states. 

A legal person does not have to be exactly the same thing as a human being. 

We hear of certain children who are born without complete brains. They can breathe and digest but they have no consciousness and no sentience. They have no feeling, no awareness whatsoever. Could you abuse that child and get away with it? Could you eat that child and get away with it? Of course not, but is having a human form the only sufficient condition for rights? Why is a human individual with no cognitive abilities whatsoever a legal person with rights, whereas cognitively complex beings such as chimpanzees or dolphins or whales have no rights at all? 

In my view when we are regarded as distant ancestors, people in the future will look back in horror at the manner in which we treated animals, even advanced animals with intelligence and the ability to feel pain and other sensory experiences. Animals deserve protection and they will only have legal protection when they are granted legal rights.

Kevin Brophy,

Brophy Solcitors

Should Certain Barristers be Barred from Family Law Cases?

I recently ran a very bitterly contested family law case and while my client was not the easiest client to represent, the barrister on the other side was the most unpleasant, confrontational, vindictive professional person I have ever come across in my years in family law.

There was never the remotest possibility that this case was going to settle amicably while this person was making the decisions on the other side.


The situation was made all the worse because I was actually quite impressed by the barrister’s client, who came across to me as a fairly reasonable individual.

In my view the barrister did her client no favours. A case that should have been settled in a matter of months ended up taking three years to come to a conclusion and I am quite convinced that this case was prolonged unnecessarily and tensions were increased quite extraordinarily, all down to the ‘never give an inch’ ‘fight every single tiny aspect of this case to the very end’ attitude of the barrister on the other side. And this was not an argument just about money. This was a case involving young children as well as property.

Unfortunately, in my experience this particular barrister is not on her own. Most of them I am happy to say are exceptionally competent and fair and reasonable to deal with. However.....

Here’s an idea. If a man can be barred from his home for years on end because he is aggressive, vindictive and at times threatening, why can’t a barrister be barred from a courtroom for exhibiting the exact same traits particularly when children and vulnerable adults can be permanently damaged as a result of their actions?



Kevin Brophy
Brophy Solicitors

Barring Order Applications

I remember when I did one of my first barring order applications – I thought it was last September but when I checked it out, it was over 25 years ago. Goodness how time flies.

It was one of those cases where I knew I was going to lose. My client was not arguing that he had not been violent to his wife. His argument was that she had been just as violent to him and that she had told him that she wanted him out and he would never get back into the house again because she was getting a barring order against him. I remember that the wife gave her evidence very honestly and openly and her application for a barring order was refused because the judge accepted my argument that a barring order was not a substitute for a divorce. I said that if the main purpose of the application was to remove the husband permanently from the house, then a barring order should not be granted particularly in circumstances where both sides accepted that there was mutual violence between them on a fairly regular basis.

I remember the judge at the time saying that the barring order is not intended to be an Irish divorce.

I used that argument on a number of occasions over the following few years but I have not used the argument for many years now and I have not heard of any other lawyer using the argument. It now seems to be quite accepted that a barring order is a sort of Irish divorce.

The original purpose of barring orders was to allow a breathing space. The purpose was to enable the two parties stand back in a calmer atmosphere and see if they could work out their differences and perhaps attend counselling or get some other form of third party help. I cannot recall over many years, any judge suggesting that the parties should see if they could resolve their differences in this manner as part of a barring order application.

This is all the more surprising when you consider the emphasis placed on the role of the family in our Constitution. So there you have it. You don’t have to wait four years to get a divorce, you can get a barring order this afternoon.

Kevin Brophy