THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision - DEC-S2013-003
PARTIES
A Separated Father
(Represented by Conor Power BL instructed by the Equality Authority)
v
A Creche
(Represented by Majella Twomey BL instructed by C.W. Ashe & Co., Solicitors)
File Reference: ES/2011/0034
Date of Issue: 24 May 2013
Keywords: Equal Status Act 2000 - section 3 (1) direct discrimination - less favourable treatment, sections 3 (2) (a), (b), (c) and (j) gender, marital status, family status and victimisation - section 7 discrimination by educational establishment - prima facie case.
1. This complaint was referred to the Director of the Equality Tribunal on 21 February 2011 under the Equal Status Acts, 2000-2008 (hereinafter "the Acts"). The respondent was notified of this complaint on 11 February 2011. On 22 September 2011 the Tribunal received a written submission from the complainant. A responding submission was received from the respondent on 28 October 2011. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 23 July 2012 and both parties were in attendance.
2. Dispute
This dispute concerns a claim by the complainant, a separated father (hereinafter "the complainant") that he was discriminated against by the trustees of a creche (hereinafter "the respondent") on the grounds of gender, marital status and family status in terms of sections 3(2) (a), (b) and (c) of the Acts contrary to section 5 and/or section 7 of the Acts by its refusal to provide access, refusal to provide records, refusal to communicate and rudeness to him, the father of two children enrolled in the creche. The complainant also claims victimisation by the respondent in terms of section 3 (2) (j) of the Acts by their continued refusal to provide records after he commenced these proceedings.
3. Summary of complainant's case.
3.1 The complainant is the separated father of two young girls A and M. A was born on 17 March 2007 and M was born on 15 January 2009. He and his wife had marital difficulties. On 4 January 2010 he obtained a Protection Order against his wife. On 7 January 2010 his wife took their children from the family home. He suspected that she had moved back to her mother and had placed the children in a creche. That day he visited 5 crèches in the general area of his wife's mother's home. He asked for a tour of the crèches claiming that he was moving into the area and intended placing children as a ruse to see if his daughters were on the premises. He found his daughters in the respondent creche (which is about 30 minutes drive from the matrimonial home) and identified himself as the children's father. He offered birth and marriage certificates and tried to exercise his constitutional right as guardian and custodian to place his children back into his safe care.
3.2 The creche manager and his staff locked the gates to keep him from his lawful access, guardianship and custody of his children.
3.3 Afterwards the creche refused to provide him with copies of his children's records so that he could prove his wife enrolled them under false pretences, thereby discriminating against him as a separated parent who was and still is co-guardian and custodian of his children. His wife had enrolled them under their correct first names but under her own surname, when the children's surname was a double-barrelled combination of the wife's surname and the husband's surname. Moreover his wife did not identify him to the creche as the children's parent or guardian, leaving the space blank. The complainant was anxious to secure a copy of the application form completed by his wife because, in his view, this would be evidence that his wife planned on 22 December 2009 (the date of the application) to take his children away from him. This would contradict a sworn statement made by his wife to the effect that she and the children left as a result of an altercation between them on 5 January 2010. At all times the creche management acted in favour of his wife allowing his children to be enrolled under false names, refusing him records and access and victimising him and his children. The creche continually refused to cite under what law or authority they were acting and instructed him to take legal steps to exercise his constitutional rights.
3.4 The creche stated that the were acting under the authority of the HSE, refused to answer his correspondence, provide him with names of their board members or solicitors and in doing so acted to assist his wife in perpetrating frauds and perjury upon the court, deprive his children of access to their father and diminish his rights in Irish law.
3.5 In particular the creche manager on 21 January 2010 contacted the complainant's family law solicitors and asked them to get him to "back off" and wait for the correct channels for his access rights. After numerous informal attempts to obtain access to his children's information being held by the creche, the complainant formally wrote to the manager of the creche on 17 November 2010 requesting all information and records either electronically or in print relating to himself and his two daughters A and M that the respondent held on its files either electronically or in print. This request was made pursuant to the Freedom of Information Act. The complainant received none of the information requested despite several requests and demands. He is alleging he was discriminated against by the respondent under section 3 of the Acts on the gender, marital and family status grounds, as follows:
Gender:
As a male, separated father he has equal rights to guardianship, custody and access to his children's records as the mother (his estranged wife).
Marital status:
As a separated parent (with legal effect from 16 December 2010) he has equal entitlement to the custody and guardianship of his children as his estranged spouse.
Family status:
As a separated father, he still has obligations and duties towards his children which require the need for him to see his children. He is entitled to know what their education/creche care is, as well as being informed by the respondent on an equal basis with the mother all information pertaining to his children.
3.6 On 16th December 2010 the Circuit Court ordered, as part of the judicial separation of the complainant and his spouse, joint guardianship and joint custody of the dependent children with primary care and control of the children with the mother and access to the father of the dependent children every Friday from 10am to 5pm and on 1st and 3rd Saturday every month from 10am to 5pm. The respondent refused to grant access to the complainant of his children's records being held by the creche either before the 16th December 2010 or thereafter when it was officially recognised by the court that the complainant was entitled to joint custody and guardianship of the children.
3.7 Redress sought
* A full apology
* Full access to all records and information held by the respondent pertaining to the children and the complainant
* Compensation for discrimination
* That the respondent changes its policy and procedure to ensure that any estranged spouses/parents should on the production of the appropriate information be allowed access to their children and their children's records
* That the respondent changes its policy and procedures to ensure that parents enrolling their children provide birth certificates and declare if there are other parents who have guardianship and/or custody of their children to ensure that parental rights and those of the children are not breached.
4 Summary of respondent's case.
4.1 On 4 January 2010 the complainant's two children A and M were enrolled in the respondent's creche by the children's mother. All registration forms pertaining to the enrolment were completed and submitted by the children's mother and all dealings and communications about the children by the creche were with the children's mother. The children were booked into the centre for 4 ½ days a week. It was the child's mother who paid for the service. The complainant never engaged the respondent's services nor did he make any payments to the respondents in this respect.
4.2 About 10 am on the morning of 7 January 2010 the complainant entered the reception area of the respondent. At no stage did the complainant identify himself as a parent of children in the centre. At all material times, the complainant informed the receptionist that he was moving into the area and that he wished to view possible childcare facilities.
4.3 The complainant asked to look at the childcare policies and was presented with them. He also requested to view the childcare rooms and he was escorted around the centre by a member of staff. On entering the creche the complainant disengaged from the staff member and approached another member of staff who was holding his child. The complainant took the child from the staff member, stating he was the child's father and demanded to see his other child.
4.4 The staff of the respondent had never seen or spoken to the complainant prior to this. In the absence of any corroboration they believed that they were dealing with an abduction situation. The staff members had to act quickly to ensure that the complainant did not gain access to the other childcare room. On doing so, the complainant went to exit the building with the child in his arms. At this point, a number of staff including the manager endeavoured to block the complainant's path. Another member of staff called the gardai.
4.5 The complainant managed to leave the building with the child and began to strap the child into a car, which was parked outside the building. The manager closed the gates in order to seek clarification form the complainant as to who he was. The complainant remained in the car until the gardai arrived, about 15 minutes later. The gardai spent a considerable amount of time with the complainant and after a period of about 2 hours the complainant and the gardai came into the respondent's premises where the ex-wife of the complainant, the children's mother, had also arrived. The gardai praised the creche for their reasonable handling of the situation. At 3pm the child was returned to the care of the centre and the parents and gardai left.
4.6 On 13 January 2010 the respondent received a letter from the solicitors acting for the estranged wife of the complainant. They stated that she had obtained a protection order at the District Court against her husband and that access and custody were to be heard on 8 March 2010. The solicitors for the wife asked for a report of the incident on 7 January 2010. The complainant's family law solicitors contacted the respondent the same day. It was agreed with both solicitors that reports were not to be provided to either side. Both solicitors agreed that the respondents were providing a valuable service for the children and it was further agreed by the three parties that all documents and information requested by the parents from the respondents would be given directly to the Courts as requested by the respective solicitors on instruction from their clients. Between 18 and 22 January 2010 the complainant rang the resource centre on at least two occasions and complained about "the plight of separated fathers in Ireland and the injustice of the Irish constitution".
4.7 The respondents looked after the complainant's children during the months of February, March, April, May and June 2010, with the children leaving in July 2010. During April, May and June 2010 the complainant had regular access to the children at the centre. The complainant and his estranged wife had come to this arrangement and the centre facilitated any arrangements, which they had made in relation to dropping off and collecting the children.
4.8 In April 2010 the manager of the respondent was summonsed to the district court by the wife's solicitor. He gave evidence but was not asked to disclose any papers. Access arrangements were settled and the manager was informed that the children would be left off at the creche by the mother and on the days he had access, would be collected by the father and returned to the creche. The creche facilitated this arrangement although the father did not turn up for the children on six of the days he was due.
4.9 On 29 June 2010 the respondent received 2 emails from the complainant stating that he had made continuous efforts to access records from the respondent since January 2010. The respondents refute this. They contend that they were prepared to release all information and documentation at any time if ordered to do so by the Court, as agreed with the solicitors of both the complainant and his wife. On 29 June 2010 also the complainant informed the respondent that he was co-guardian and co-custodian of the children. The respondent claims that they were never informed of this before.
4.10 On 9 July 2010, the manager of the respondent received a summons from the complainant to attend the district court and brought all the said documentation with him. The complainant demanded all the documents in the hallway of the court, but as the manager had agreed with the legal representatives of the complainant and of his wife that he would not do so unless requested by the court or the solicitors, he did not give the complainant any of the documentation. The manager was not called to give evidence, despite the fact that the complainant requested him to be there.
4.11 About the end of July 2010 the children were taken from the centre and the centre was no longer a point of access to the children for the complainant.
4.12 The respondent did not hear anything more from the complainant until 6 December 2010 when he received an email demanding immediately records pertaining to his children and enclosing a copy of his complaint to the Equality Tribunal.
4.13 Because of the very unusual and special circumstances of this particular case and because the respondent had agreed with the complainant's solicitor and the wife's solicitor that neither party would receive these documents except they were handed into court for the benefit of both. The respondent believed that they had to comply with this agreement. At this stage the manager had been to court twice with the documentation and had not been requested either by the court or the parties' legal representatives. The respondent believed that if they gave the documents to the complainant in breach of what had been agreed then the complainant's wife would have been treated unfairly and unequally.
4.14 On 7 December 2010 the respondent received another summons from the complainant to attend the Circuit Court on 16 December 2010. The manager attended court with all the relevant documentation. The complainant demanded the records from the manager in the hallway of the court but the manager informed him that he was there to hand them into the Court for the benefit of both parties to ensure that both parties had equal access to such documents. The manager was not asked to hand the documents in, by either party's legal representatives, despite waiting for over two hours. When the case had finished the manager asked the court registrar if he could hand into court in order to fulfil his duty. In the circumstances the registrar advised the manager to leave the documents in the family court section and get a receipt, which he did.
4.15 The respondent denies that they discriminated against the complainant on the gender, marital status and family status grounds by failing to supply him with the documentation sought. They argue that they treated the complainant's wife, the comparator, in the same fashion, in light of the special circumstances of the case and as agreed by both parties' legal representatives, by not only handing the documents to the court and not to either party.
4.16 The complainant in response denies that he was aware of such an agreement and that such an agreement existed. The complainant argues that by refusing to release any documents to either party the respondent disadvantaged him more than his wife since she was aware of the content of the application form she had filled in and he was not.
5 Consideration
5.1 I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5.2 Section 3 of the Acts defines "discrimination" as occurring-
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds') which --
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned.
5.3 Section 3 (2) defines the discriminatory grounds on which the complainant has taken this case as follows:
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the "gender ground"),
(b) that they are of different marital status (the "marital status ground"),
(c) that one has family status and the other does not or that one has a different
family status from the other (the "family status ground")
...
(j) that one --
(i) has in good faith applied for any determination or redress provided for in
Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court
in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in
subparagraphs (i) to (iv),
and the other has not (the "victimisation ground").
5.4 Section 2 defines marital status as meaning being single, married, separated, divorced or widowed and defines "family status" as meaning being pregnant or having responsibility as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years.
5.5 The representative of the complainant contended that he was treated less favourably than (a) his wife; (b) a hypothetical non-separated married parent; or (c) the person named by his wife as the children's next of kin on the enrolment form for the creche.
5.6 No evidence was produced to support the case that the complainant was treated less favourably than a hypothetical non-separated married parent, or than the person named by his wife as the children's next of kin on the enrolment form for the creche. The only evidence put forward was of comparative less favourable treatment was in support of a claim that the respondent treated the complainant less favourably than they did his wife. Therefore his wife is the only relevant comparator.
5.7 The complainant and the complainant's wife had at the relevant time the same marital status and the same family status. Both were separated and both were parents. Therefore, the alleged difference in treatment cannot have been on the grounds that the complainant was of different marital or family status from his wife.
5.8 What remains is
(i) the allegation that the respondent treated the complainant less favourably than they did his wife because he was a man and she was a woman, i.e. on the gender ground; and
(ii) the allegation that the respondent treated the complainant less favourably than they did his wife or a hypothetical comparator because of his applying for redress under the Acts or his having given notice of an intention to do so, i.e. on the victimisation ground.
5.9 The alleged difference in treatment is that the respondent denied the complainant his rights as guardian and custodian of his children and denied him information about and access to his children to which he, as the married father of his children, was entitled. The alleged discrimination is that the respondents did not deny these rights to his wife.
5.10 If a child is born to parents who are married to each other, the child's biological parents are automatically deemed to be the guardians. This is in line with constitutional requirements, a husband and wife being jointly and equally entitled to make decisions on the child's behalf. They have joint and equal responsibilities and entitlements in respect of the child. Guardianship rights and responsibilities are inalienable. Once a child is born to parents who are married to each other, the parents each continue to be guardians of the child even if they subsequently separate or divorce. Guardianship rights of a married father cannot be removed by a court.1 However custody and access can be limited or denied by court order.
5.11 Guardianship encompasses the duty to maintain and properly care for a child and the right to make decisions about a child's religious and secular education, health requirements and general welfare. The right to custody of a child is one of the rights that arises under the guardianship relationship"2
5.12 Therefore, a married father as guardian has an equal right to co-decision on the major issues affecting his child's welfare. This would include a decision to enrol the child in an educational establishment. The complainant as guardian ought to have been party to the decision to enrol his children in the respondent crèche. However, the respondent was not made aware that the children had a father with guardianship rights, until the complainant arrived at the respondent crèche. The complainant agreed with his wife and with the respondent that the children would continue to attend the crèche. It was not the respondent that denied him his right to be party to the decision to enrol the children in the crèche.
5.13 An educational establishment discriminates on the gender ground where it treats one married parent (e.g. the mother) more favourably than the other (e.g. the father) with regard to their child's education where both parents have equal rights of custody and access. Where however, the parents have separated, custodial and access arrangements as approved by a court may determine the extent to which each parent has contact with the educational establishment. It is not gender discrimination for an educational establishment to favour one parent over the other in compliance with court approved arrangements. In this case the respondent complied with access arrangements as approved by the courts.
5.14 The complainant claims that the respondent discriminated against him by failing to supply him with the documentation he sought. The respondent argues that they treated the complainant's wife, the comparator, in the same fashion, in light of the special circumstances of the case and as agreed by both parties' legal representatives, by only handing the documents to the court or legal representatives directly and not to either party.
5.15 The complainant in response denies that he was aware of such an agreement and denies that such an agreement existed. Without prejudice to that contention, the complainant argues that by refusing to release any documents to either party the respondent disadvantaged him more than his wife since she was aware of the content of the application form she had filled in and he was not.
5.16 In my view the respondent believed that both parents' representatives had agreed to an arrangement that no information would be released to either parent unless requested by their solicitors or ordered by a court. It is true that the complainant's wife was aware of the contents of the application form she had filled out. However, the complainant in turn would have been aware of the content of his own written communications to the respondent, for example his emails of 29 June 2010, which were not released to his wife. Therefore, I find that the respondent did not discriminate against the complainant be refusing him the documentation he sought.
5.17 As regards the complaint of rudeness to the complainant by the respondent, while it is clear that relations between the complainant and the respondent were not good, no evidence was presented that the respondent's treatment of the complainant was due to the complainant's gender. Therefore I conclude that the respondent did not discriminate against the complainant by treating him less favourably than they did his wife.
5.18 Victimisation
Article 10 of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services requires Member States to introduce into their national legal systems such measures as are necessary to protect persons from any adverse treatment or adverse consequence as a reaction to a complaint or to legal proceedings aimed at enforcing compliance with the principle of equal treatment. This is effected in Irish law by section 3 (2) (j) of the Acts.
5.19 To prove a claim of victimisation, it is necessary to establish the following elements:
* The complainant had taken action of a type referred to at section 3 (2) (j) (i) to (v) of the Acts, and
* The complainant was less treated favourably than another person is, has been or would be treated in a comparable situation who had not taken such action.
5.20 The requirement to identify an actual or hypothetical comparator distinguishes the treatment of victimisation in the Equal Status Acts from that in the Employment Equality Acts. Given that both Acts give effect to the same principle of EU law, there can be no difference in effect between the two Acts. As long as the complainant can show that
* He or she had taken action of the sort protected,
* The respondent treated the complainant less favourably after the action than before, and
* The less favourable treatment was in reaction to the protected action having been taken by the complainant,
the complainant can cite the difference in treatment he experienced himself before and after the protected action as evidence that he has been treated less favourably than a hypothetical comparator who had not taken the protected action. It is not necessary for the complainant to point to the more favourable treatment of an actual comparator.
5.21 In the current case the complainant cites the continuation of the alleged discriminatory act after he notified the respondent of an intention to lodge a complaint under the Acts as evidence of victimisation. I have already found that the complainant was not treated less favourably than they did his wife, the actual comparator. Unless the complainant can point to a link between the respondent's treatment of him as a reaction to his protected action he cannot establish a prima facie case of victimisation. A continuation of the same treatment cannot constitute victimisation since it is not a reaction to the complainant notifying the respondent of an intention to lodge a complaint under the Acts.
6. Decision
6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.
6.2 I find that the respondent did not discriminate against the complainant on the gender, marital status, family status and victimisation grounds pursuant to section 5 and section 7 of the Acts.
Niall McCutcheon
Director
24 May 2013.
1 B.v. B. [1975] I.R. 54
2 Shatter Family Law (4th ed.) 531 (this definition was adopted by Finlay Geoghegan J. in R.C. v. I.S. [2003] 4 I.R. 431)