The Equality Tribunal
Equal Status Acts 2000-2012
Decision DEC-S2013-009
A Father
v.
A Health Service Provider
(represented by Byrne Wallace Solicitors)
File Reference: ES/2011/176
Date of Issue: 14th October 2013
Key words: Equal Status Act, 2000 - 2012, Direct discrimination, Section 3(1) - less favourable treatment, 3(2)(a) (b) (c) (e) (h) (j) - gender, civil status and family status, race and religious belief and victimisation 3(2)(i) - refusal to provide a service, Section 5(1), Section 38A. - Burden of proof, prima facie case.
Delegation under Equal Status Acts, 2000-2012
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 8th December 2011. On the 20th of June 2012, in accordance with his powers under section 75 of the Employment Equality Act, 1998-2011 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 6th January 2012 and 9th March 2012 and from the respondent on the 7th of June 2012. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 11th of June 2013 and the final correspondence was received on the 15th of August 2013.
1. Dispute
1.1 The dispute concerns a claim by the complainant, a separated father of two children that he was discriminated against on the gender, marital status (now civil status), family status, religion, and race and victimisation grounds in relation to the provision of a service by the respondent. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(a), (b) (c), (e), (h) and (j) of the Equal Status Acts and contrary to Section 5(1) of that Act in that the respondent refused to give him information about his children. The respondent denies that the complainant was discriminated against on any of the grounds cited and submits they had no permission to pass on the information. As there are sensitive issues in this case, it is my intention to provide facts which I think are necessary for the decision and to express them in a non specific manner as possible so as to reduce the chances of identification.
2 Complainant's Case
2.1 The complainant is the separated father of two children, (the eldest daughter is referred to as Y and the youngest daughter as Z) he has a court order giving him access to Z. On the 31st of August 2011 there was a breach of the access order by his former wife (referred to as Ms X) and the complainant became aware that the children had been removed from their schools and relocated without his consent or knowledge to another part of the country. He got a text message from Ms. X to say they were on holidays. The complainant said he did not believe her as the children should have been at school. He contacted the Gardaí and they could not locate the family at their home. He then contacted both schools and the children were not at school. As soon as he realised the family were no longer at their home he contacted the social work department of the respondent to enquire if they knew of the whereabouts of his children. He said that he had serious concerns about Y as she was diagnosed with a condition when she was 5 years old and again at 14 years old by an expert in the area. The complainant said that he had provided therapy for her and worked with her on a range of programmes up to the age of 12 and she made great progress. Following the separation and the establishment of access rights for him she was over 12 years old and she opted not to have visiting rights with him. He said that he maintained contact with her school and the school principal raised concerns about her progress in school sometime in 2011. The Principal then referred Y to a Child Guidance Clinic in May 2011. Both parents consent was required so that the referral could go ahead. The family had contact with the respondent's social work department for the number of years. The complainant gave his consent to the referral and the Psychologist the clinic wrote to the respondent's social work department asking them to liaise with the child's mother to see if she would give her consent.
2.2 On the 31st of August 2011, the complainant said that he spoke to a social worker who will be referred to as Ms. A in this decision and asked her if she was aware that the children had been removed from their schools and that the family had relocated somewhere without his consent or knowledge. He said that he was very concerned because he did not know if they intended leaving the country and if he needed to get a court order to prevent Ms. X from taking them out of the country. Ms. A told him that she was aware of the relocation plan for sometime and she also knew their location, but she refused to disclose their address and advised him to contact his solicitor. She told him that his former wife did not want him to know the new address and that she (Ms. X) would inform him herself. He said that Ms. A then proceeded to ask him if he was the parent and legal guardian of the children and she then queried him about his marital status and whether his marriage outside Ireland was legal. The complainant explained to that he was legally married in a Hindu Temple ceremony more than 16 years ago. He said to her that he was insulted by this line of questioning as members of the Hindu religion do not have children outside marriage. He also said that the respondent had all the information required on their files. He said that he offered to produce his marriage certificate, but he alleged that Ms. A insisted that he would have to produce a marriage certificate from an Irish institution. Ms. A also requested the Court access order before she would disclose the location of his children.
2.3 On the 2nd of September the complainant hand delivered a copy the Judicial Separation and access order to the respondent under a cover letter. The complainant explained that the court order contained the details of his marriage. He said that he telephoned later that day and spoke to the team leader (Ms. B) as Ms. A was not available. She told him that she was aware of the family's relocation plan and she confirmed that they knew their address but she refused to give it to him. She suggested that he could get the address from the courts as there were still ongoing proceedings or that he should go to his solicitor. The complainant said that he could not afford a solicitor and he had represented himself in court in the family proceedings. The complainant said that he telephoned a number of times and the following week he was informed that the respondent had written to Ms. X and had given her 2 weeks for permission to provide the address to him. He said he was not provided with the address.
2.4 On the 14th of September 2009 he notified the respondent of his complaint of discrimination under the ES Acts. On the 10th of October 2011 he received a response from Ms. B. In that letter the complainant was informed that Ms. X's solicitor had notified the respondent that she objected to him having the address and that she (Ms. X) was now seeking legal advice on the matter. In response to the contention that there were matters which prevented the respondent providing the address, the complainant stated that he had already written to the respondent in April 2011 enclosing documentation which clarified this matter. Despite giving the respondent proof of his legal marriage he was never provided with the address.
2.5 The complainant submitted that the respondent failed to respect his legal rights as guardian of his children and referred me to the Guardianship of Infants Act 1964. He also referred me to the Supreme Court judgment delivered by Judge Walsh in the case of B v B [1975] ILR where the Court stated that the purpose of the Act was to give both parents equal rights in relation to guardianship of their children and in the case of separated parents the non custodial parents does not lose the rights which accrue to him as a guardian. The complainant submits that he should be consulted by the respondent in all matters where they were involved with his children and by asking him to produce the Court access order before doing so he was discriminated against on the marital status ground. He also submitted that it was discriminatory on the marital status ground to give the solicitor of Ms X 2 weeks to produce information that he was legally entitled to because a married father would not have been required to wait for a solicitor to make such a disclosure. He also states that it was discriminatory to tell him to go to a solicitor or apply to the courts to get information about his children that he was legally entitled to and a non-separated married father would not have been told to do so as the information would have been provided. He referred me to the Equality Tribunal decision in the case of A Separated Complainant v A Hospital DEC-S2010-046 where it was held that it was discriminatory to tell a separated father to go through a solicitor to obtain information about his children.
3 Respondent's Case
3.1 The respondent denies that the complainant was treated in a discriminatory manner when they did not immediately disclose the address of his estranged wife Ms. X and their two children. They submitted that the complainant was always treated fairly and in line with the respondents existing policies with respect to equality of treatment. The respondent was aware that the complainant and Ms. X separated in or about 2007 and that a formal judicial separation order was made in 2009 and that in February 2011 the Circuit Family Court made an order in respect of the complainant's rights of access to his dependant daughters'. Ms. A said in evidence that she was assigned as a social worker to deal with a Garda notification that the services had received in respect of the complainant's daughter Y. She said that she telephoned Ms. X on the 18th of August 2011 to arrange an appointment to meet her along with Y in relation to the matter. While there was a file in the office she had very little knowledge of the case. She said that she was told in that conversation with Ms. X that she was moving to a different area for a fresh start. Ms. A informed her of the Garda referral and it was her opinion that Ms. X knew about it. Ms. A explained to her that it was a serious referral and a full investigation would have to take place by the respondent's social services in the town to which she was moving. Ms. X told her she believed that the incident referred by the Gardaí was a silly prank by her daughter. Ms. A requested the address so she could make that referral. Ms. X refused to give it because she did not want Y referred to the respondent's social services in the new location as she did not want the Garda referral investigated and also she did not want the complainant to have her new address. She clarified to her that she would pass on the new address to the complainant herself.
3.2 Ms. X also told her that she was aware of the referral for Y to the local Child Guidance Clinic and she went on to say that she would not be taking up this referral for her daughter. On the 19th of August 2011 Ms. A telephoned the psychologist from the Clinic and she informed her that the family was moving to a different town and she requested the psychologist not to inform the complainant as Ms. X intended to do this herself. Ms. A said that she did not have the authority to allow another service to pass on the information to the complainant. On the 1st of September 2011 Ms. A telephoned Ms. X and she got her new address. She was again asked her not to inform the complainant of her whereabouts as she intended to write to him about it and to arrange access.
3.3 On the 1st of September she received a telephone call from the complainant and he asked her if she was aware of the fact that the family had moved and she confirmed she was as Ms. X had informed her about two weeks ago. The complainant then requested the new address and she told him Ms. X requested her not to pass on this information. The complainant told her that he was the parent and the legal guardian of the children and he had a right to know their whereabouts. Ms. A said that she spoke to him about legal guardianship and she explained to him that he should submit a marriage certificate or a custody or access order to confirm legal guardianship. In general she said that she would always seek confirmation that the father has legal guardianship and she would ask that question regardless of the race of the father. Ms. A disputes the complainant's contention that she told him that she needed confirmation that his marriage was registered in Ireland. She accepts that she may have asked if the marriage was registered in Ireland and if he was the legal guardian. She also recalls a discussion about the Hindu religion and having children outside marriage. Ms. A. said that it was never her intention to be offensive to the complainant but she is required to follow procedures and due process and that was the reason for the question about guardianship. In response to questions from the complainant she said that she did not discuss the referral of child Y to the Child Guidance Clinic with Ms. X as requested by the psychologist and the need for her permission if the referral was to go ahead. She was not aware of any issue in relation Y.
3.4 Ms. B said that she was the team leader at the time supervising a team of social workers. The Tribunal was provided with details of the respondent's contacts with the family from 2008 onwards and the file was closed in October 2010. The file was reopened on 6th May 2011 on foot of a Garda notification concerning child Y. There was a waiting list of 2 months before it could be assigned to a social worker.
3.5 On the 2nd of June 2011 Ms. B said that she received a telephone call from the complainant who told her that the school wanted to refer Y to the Child Guidance Clinic. She enquired from him if he knew of the Garda notification and he confirmed he did. She explained to him that there was a two month waiting list but as soon as it was referred to a social worker for assessment that he would be included in the assessment as all family members are included in the assessment. The case was allocated to Ms. A and another social worker. Ms. A made contact with the mother on the 18th of August to arrange the assessment and learned that the family were moving. Ms. B said that she instructed Ms. A to refer the Garda notification to a social worker in the new area.
3.6 On the 31st of August the complainant spoke to Ms A and he was looking for the new address of his children. Ms. B said that Ms. A discussed the telephone call with her and said that the complainant told her he was married in a traditional Hindu ceremony and it was not formally registered in Ireland. Ms B said that she did not know if the complainant was married and if he was the legal guardian of the children, as only married fathers can be legal guardians. She said that she wanted to be absolutely sure and therefore documentary evidence of the marriage was required and the complainant gave them the judicial separation agreement a couple of days later which clarified the marriage and the access arrangements for the children.
3.7 Ms. B said that she telephone Ms. X to seek permission to give the complainant the new address and she was notified that if she passed on the address the mother would issue legal proceedings. On the 5th of September she wrote to Ms. X saying that she had sought legal advice on passing on the address. She advised her that the complainant is the legal guardian of the children she was obliged to provide the address to the complainant and that she intended doing so in 14 days, which was the 19th of September 2011. A response was received from Ms X's solicitor stating inter alia that there were reasons for the non disclosure of the address and that her client was shocked that she proposed giving him her address. Ms. A said she was unsure of how to proceed after getting this letter and she contacted the respondent's solicitor who contacted Ms. X's solicitor to find out if any matter existed which prevent the respondent from providing the address.
3.8 On the 14th of September she received a notification from the complainant under the Equal Status Acts complaining about discriminatory treatment and she responded by letter dated 10th of October 2011. The family file was passed to a Social Worker in the new area on the 9th of September 2011. The complainant telephoned her on a number of occasions seeking the address and on the 1st of November 2011 he telephoned and made a number of allegations about her practices. She stated that he informed her that he had an address. She asked him to read it out so that she could confirm to him that he had the correct address but he would not do so. Ms A then wrote to the complainant on the 17th of November 2011 stating that she now understood he had the address of where his children resided and informing him about the transfer of the file and telling him that her department had no further role with his family she would not be responding to his telephone calls or correspondence in future.
3.9 Ms. B said that she has no authority to prevent someone from moving from an area if they wished. She denies that the complainant was discriminated against on the civil status or any other ground and said that she could not pass on the information about the address until she had clarity about the complainant's guardianship. She rejected the complainant's contention that she did not keep him informed and that there was an inordinate delay in providing him with information.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(a)(b)(c)(e)(h) and (j) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
The respondent's solicitor stated in a written submission that although the complainant had notified her client under the ES Acts, that he was complaining about discrimination on the gender, marital status, family status, religion, race and victimisation ground, he did not formally pursue the complaints on the religion, race and victimisation grounds when he referred the matter to the Tribunal on ES 3, although he did address issues in relation to race and religion in his submission. Therefore she was confining her submission to the grounds referred to on the complaint form.
4.2 I note that the complainant notified the respondent on ES1 that he was complaining about discriminatory treatment and ticked the following boxes on the form: gender, marital status (now civil status), family status, religion, race and victimisation. He then referred his complaint to the Tribunal on form ES3 and ticked gender, civil status and family status and attached the notification form ES1 which he had already served on the respondent together with the respondent's response to the notification. I also note that all the grounds were addressed by the complainant except victimisation in his submission to the Tribunal of the 6th of January 2012.
In considering whether all the discriminatory grounds mentioned above are properly before the Tribunal, I have applied the jurisprudence of High Court in the case of County Louth VEC v The Equality Tribunal [2009] IEHC 370 where Mc Govern J. was considering whether all incidents of discriminatory treatment could be considered by the Equality Officer in a complaint under the employment equality legislation. He stated at para. 6.2:
"I accept the submission on behalf of the respondent the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation) remains the same. What is at issue is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
4.3 I further note that in his Judgment in Clare County Council v Director of Equality Tribunal [2011] IEHC 303 Hedigan J. in applying the above cited paragraph stated that:-
"It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein."
In this case the complainant had specified all the grounds he intended pursuing in the notification form and addressed these matters in his submission. In applying the above jurisprudence to the facts of this referral, I am satisfied that complaints of discrimination on the following grounds: gender, marital status (now civil status), family status, religion, race and victimisation have been validly referred to the Tribunal. The complainant withdrew the complaint of victimisation.
4.4 The next matter I have to consider is whether the complainant has established discriminatory treatment on any of the grounds. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified...).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that:
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 civil status (the 'civil 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''),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the ''religion ground''),
................
(h) that they are of different race, colour, nationality or ethnic or national origins (the ''ground of race''),
5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
I am satisfied having regard to section 5 above that the complainant was seeking a service from the respondent and his complaint of discriminatory treatment comes within the scope of the Act.
4.5 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
4.6 The complainant submits that he was discriminated against when the respondent failed to provide him with information and in particular the address of his children, and when he sought the address the respondent questioned whether he was the legal guardian and asked him discriminatory questions. He said that as a married father he is the guardian of his children in accordance with the Guardianship of Infants Act 1964 and he referred to the Supreme Court Judgment in the case of B. V B. [1975] I.L.R. The respondent's case is that they were not aware that the complainant was the legal guardian of his children and this was the reason he was asked questions about his marriage. It is clear from the evidence that the respondent knew that the complainant is the father of the children. It is also clear from the evidence that the respondent had sufficient evidence to know that the complainant was a legal guardian of the children as this information was contained in their file, a file which was in existence since 2008. It is not credible to suggest that they were not aware of this fact when on their own evidence to the Tribunal they were clearly aware that the parents had ongoing court proceedings at the time the complainant was seeking the location of his children.
4.7 I note that Ms B was the team leader and in her evidence she said that she was very familiar with the family since 2008 and Ms A deferred to her in relation to providing the address. It is clear that despite her familiarity with the case she continued to insist that the complainant had to provide proof of his marriage. I note during the hearing she said that she did not know a lot about India and the Hindu Religion and she needed to enquire strongly into these matters in order to establish the complainant's legal guardianship. In response to the notification of the complaint under the ES Acts I note that Ms D wrote to the complainant on the 10th of October as follows:
"(ii) I reject that this department discriminated against you, or victimized you, on grounds of gender, marital status, family status, religion or race;
(iii) you were asked questions regarding the birth status of your children; the legality of your marriage; and the status of current court proceedings, to enable this department to determine whether you hold legal guardianship of your children in Ireland. I apologise if you found this offensive, but these questions were necessary for this department to ascertain what information, in principal, we can release to you;
(iv) In relation to your request that this department release your children's current address to you, you are already aware that it was my intention to do so on the 19th of September 201. However, ..... (former wife's name) Solicitor's have written to ... (the respondent) voicing their objection. ..........As previously discussed, it may be helpful for you to ask that the address be produced as part of your ongoing Court proceedings with (Ms X) ..... and indeed this could expedite matters."
4.8 I am satisfied having regard to Ms. B response above that it supports the complainant's version of the telephone conversation in that Ms. B confirmed that questions about the birth status of his children and the legality of his marriage in India in the Hindu Religion were asked and also questions about the current status of Court proceedings. I cannot accept it was necessary to ask these questions of the complainant given that they were dealing with the family since 2008 and knew that the complainant was the father of the children. It is not credible for the respondent's witnesses to suggest otherwise. I am satisfied from the evidence that the complainant was asked questions about his Hindu marriage, if it was legal and if his marriage was registered in Ireland.
4.9 I find therefore that the complainant was treated in a discriminatory manner in relation to this aspect of his case on the race, religion and civil status grounds. I am satisfied that the complainant has established that he was treated less favourably on the race ground than an Irish person would have been treated in similar circumstances in that an Irish person living in Ireland would not have to explain where the marriage took place and would be able to produce a certificate of an Irish marriage. I am also satisfied that the complainant has established that he was treated less favourably on the religion ground than another person of a different religious belief would have been treated in similar circumstances, in that the legality of his marriage in a Hindu Temple was questioned. I am satisfied that the legality of an Irish persons marriage conducted in a Catholic church would not have been questioned or subjected to such scrutiny. I am also satisfied that the complainant has established that he was treated less favourably than a non-separated parent would have been treated in similar circumstances. If a non-separated parent had contact with the services in the same way as the complainant had, I am satisfied that person would not have been subject to the same treatment and would not have been subjected to such questions particularly when the file in the office contained the information. It was also discriminatory on the marital status ground to ask questions of the complainant about the status of his judicial separation and family court proceedings such a question would not be asked of a non separated person seeking a service from the respondent. For the foregoing reasons I find that the complainant has established that he was discriminated against when he was asked questions which were discriminatory on the race, religion and civil status grounds when he was seeking a service from the respondent.
4.10 I also note that the complainant wrote to the respondent on the 26th of April 2011 enclosing a number of documents. Furthermore I also note that the Child Guidance Clinic wrote to the respondent on the 16th of August 2011 concerning the referral to their services which had been made to them from the Principal of Y's school. I am also satisfied that the respondent had all of the relevant information concerning the family on the 2nd of September to make a decision in relation to the release of the information. While I accept that Ms. B telephoned Ms. X to say she was going to release the address and then followed it with a letter providing 2 weeks for her to respond. I cannot accept that it was necessary to give Ms. X such a length of time for her to give permission to release the information given that they now had all the documentation they required. While I accept that the respondent was given incorrect information by Ms. X's solicitor in relation to a matter, I cannot accept that this matter could not have been clarified in a timelier manner. Even if this matter was correct I cannot accept that he was still not entitled to the address of his children. I note that the respondent continued to withhold the address from the complainant and in fact they never provided it to him, I note from the evidence they would only confirm to him if the address he eventually got was the correct address.
4.11 The complainant submitted that the respondent was well aware of certain matters but they sided with his former wife and by refusing to provide him with vital information they succeeded in assisting his former wife to curtail and completely neutralised access to his children. He pointed out that when a parent breaches an access order the other parent can serve a penal endorsement as part of the judicial process to enforce the court order but this has to be served in person on the parent in breach. The complainant said that he needed the new address to serve the penal endorsement and could not enforce the court order because he did not have the address. He also said that if he had the address he could have gone to the Courts to prevent the relocation but the courts are reluctant if a period of time has elapsed to order the mother to return with the children if they are well settled in their new location. He said that he got a letter in September from Ms. X seeking to change the access and informing him of the town they had moved to but not their address.
The complainant referred me to the Respondent's Handbook and stated that the respondent were in breach of their own procedures by not involving him in vital matters concerning his children. I note at paragraph 3.61 entitled Working with Fathers/Male Partners it states:
"Research shows that child welfare systems are often not making adequate efforts to establish contact with fathers, even when fathers were involved with the family ......
If the father of the child is not living with the family, all efforts must be made to locate and involve him in the assessment/investigation and, if possible, any intervention plan for the child. Engaging fathers in the assessment or the plan (the latter may include therapeutic help) is crucial to a comprehensive assessment, where the child is central. The importance of parental roles is clear, yet research shows that the focus of many assessments is the mother. When engaging fathers in assessments, practitioners should bear the following points in mind:
Physical absence of fathers should not be equated with psychological absence.
It is not advisable to make a second or third hand assessment of the father role in a child's life."
4.12 I am of the view that the respondent was in breach of their own procedures in relation the treatment of the complainant as regards involving him in matters about his children. I note that the respondent engaged with Ms X in relation to a Garda Notification about Y, but the complainant was not notified about it until he telephoned the respondent. The complainant submitted that he should have been notified but respondent fully accepted Ms. X's statement on the matter and the respondent did not inform him. He said that he was discriminated against on the gender, family and marital status because if he was mother of the children or if he was not a separated father he would have got the information. I note that the respondent knew the complainant was endeavoring to get Ms. X's permission to proceed with a referral of Y to the Child Guidance Clinic which had been made by the principal of her school. I note at the hearing Ms. A stated that she did not discuss the letter addressed to her from the Clinic with Ms. X. However her note of the 18th of August 2011 suggests that there was a discussion and that Ms. X told her she was aware of the referral and that her daughter would not be proceeding with the appointment. I note that the complainant states that he spoke to Ms. B about his concerns and I also note that this information was not passed on to him. She said in evidence that she was not aware of any serious welfare issue in relation to the Y. I note that Ms. B stated that the complainant informed her that Y had a condition, but she said that she had no evidence of any vulnerability in the child and that she was articulate and had no difficulty in expressing herself and was attending main stream school. She also said that she had no concerns about Y when she learned on the 18th of August 2011 that Ms. X intended leaving their home and moving to another location as the respondent provides a nationwide service.
4.13 The complainant said that he had serious concerns about Y and his concerns were completely ignored by the respondent. He said that they had refused to accept the diagnosis and report of an expert in the area. He further submitted that as it turned out his concerns were well founded and he provided confidential evidence to the Tribunal in that respect. His submitted that if he had known that his children were being moved away from the area where they had established friends and where they were going to school he would gone to the Courts to stop it and to prevent the new school from enrolling the children against his wishes.
4.14 It is my view that Ms. B was very dismissive of the complainant's concerns. In my opinion this was due to the fact that he was the separated father and his concerns regarding Y and his need for the address of the children were not treated as seriously as they should have been. In relation to this matter, I note that Ms. X wrote to the complainant on the 17th of November 2011 advising him inter alia that the file had been transferred to the new area and stating that: "This department has no further role with your family as your children are no longer residing in the catchment area of the (respondent)...and therefore I will not be responding to your telephone calls or correspondence. I have previously advised you of the .... (the respondent) complaints procedure should you wish to advance your complaints regarding work undertaken by this department."
4.15 While the respondent had no power to stop the complainant moving with her children, the respondent could have informed the complainant of this fact as soon as they were informed as there was clear evidence before them that there was a matter referred to them by the Gardaí. I have to accept the complainant's evidence in this regard his input and concerns were not taken into consideration and his right to information which the respondent had concerning his children was ignored even though their own Procedures require them to involve the father in any intervention plan for the child. I note at the time the complainant was seeking the address of his children on the 1st of September the respondent was at the same time in the process of transferring the file to their office in the new area without any input from the complainant and did so on the 9th of September and while still withholding the address of the children from him. The question is whether the complainant was treated less favourably because of his separated status than a married father would have been treated in similar circumstances? I am satisfied that if a non separated father contacted the respondent's services in relation to similar concerns about his children that he would not have encountered such difficulties and he would have been provided with all the information about their children including the address. I am also satisfied that if a separated mother contacted the respondent's services in similar circumstances that she would have been provide with such information. I find therefore that the complainant has established a prima facie case on the gender and marital status grounds.
4.16 The complainant also submitted that he was discriminated on the marital status ground when he was told by both Ms. A and Ms. B to contact his solicitor to get the address and referred me to the Equality Officer decision in the case of A Separated Complainant v A Hospital DEC-S2010-046 where the equality officer held it was discriminatory on the marital status ground to ask a separated parent to go through a solicitor to get medical information about his child. I note the respondent stated that they made this request was because they were not sure if the complainant was the legal guardian of the children. I note that in Ms B's letter of the 10th of October 2011 to the complainant at paragraph 4.5 above, she advised him to seek the address as part of the ongoing Court proceedings. I am satisfied that the respondent knew that there were family law proceedings in relation to the judicial separation and access to the children. I am also satisfied that when Ms. B wrote the letter of the 10th of October 2011 that she had clear evidence since the 2nd of September 2011 that he was the legal guardian of the children. I am satisfied that the complainant has established less favourable treatment on the marital status ground in relation to this aspect of his complaint as a married father would not have been referred to a solicitor or told to go to the court to get the address of his children. I find therefore the complainant has established a prima facie case of discriminatory treatment in relation to this aspect of his case.
4.17 In relation to the family status ground I find the complainant has presented no evidence in relation to this ground. I am satisfied that he cannot establish that he was treated less favourably than a person with a different family status or a person with no family was treated or would have been treated in similar circumstances.
5. Decision
5.1 For all of the foregoing reasons I find that the complainant has established discriminatory treatment on the gender, civil status, race and religion grounds contrary to the Equal Status Acts.
Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under the above Section the maximum amount of compensation I can award is €6,348. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. I order the respondent to pay to the complainant the sum of €6,348 (six thousand three hundred and forty eight euro) to compensate him for the anxiety and distress experienced as a consequence of the discriminatory treatment.
5.3 In accordance with Section 27(1)(b) of the Equal Status Acts, I order that the respondent within 6 months of this decision carry out a review of their procedures in relation to the provision of information to parents, in particular to separated fathers, regarding their children to ensure that these procedures are in compliance with the Equal Status Acts, and that staff are trained in the new procedures introduced as a result of this review. The new procedures should be in a written format and available to staff and parents.
5.4 In addition I am making a non binding recommendation that the respondent contact the complainant to discuss and advise him and to refer him to the appropriate services available in the organisation for Y.
__________________
Marian Duffy
Equality Officer
14th October 2013