DEC-S2015-001

EQUALITY OFFICER'S DECISION NO: DEC-S/2015/001

PARTIES

Ms. A (on behalf of her daughter, B)

(Represented by TP Robinson Solicitors )

-v-

A Girls Secondary School

(Represented by Crowley Millar, Solicitors)

FILE NO: ES/2012/0174

Date of issue: 6th of February, 2015

1. Dispute

1.1 This dispute involves a claim by Ms. A on behalf of her daughter, B
that she was discriminated against by a Girls Secondary School, on grounds of race, and/or family status, contrary to section 3(2)(c)&(h) of the Equal Status Acts, 2000-2012 when it failed to offer her a place as a First Year pupil to the school for the Academic Year commencing September, 2015. The Admissions policy applied relates to the date of application of the child and Ms. A submits that this discriminates against the complainant on grounds of race and/or family status.

2. Background

2.1 The complainant Ms. A referred a complaint on behalf of her daughter under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 11th of December, 2012. The complainant was born in June 2003 in China and was adopted by Ms. A and they returned to Ireland in October 2004. In March 2005, Ms. A applied on behalf of her daughter for a school place in the respondent Secondary school. By letter dated 30th of October, 2012 the respondent advised Ms. A that the application on behalf of her daughter was unsuccessful, that all places had already been offered to pupils commencing in the school in September 2015. Ms. A was further advised that the complainant’s name was on a ‘waiting list’ but was so far down the waiting list that it was clear she would not be offered a place unless Priority Category 1 became available (this relates to sisters of current pupils). The Admissions policy applied relates to the date of application of the child and Ms. A submits that this discriminates against the complainant on grounds of family status and/or race. Ms. A submits that other applicants can apply when the child is born and obtain an early application date but the complainant was unable to make an earlier application due to the fact that she was born in China and then adopted after which she returned to Ireland with Ms. A.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2012, the Director delegated the case on 14TH of May, 2014 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2012. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 7th of November, 2014.

3. Summary of complainant’s case

3.1 The complainant was born on 26th of June 2003 in China. She is of Chinese ethnicity and national origins. The complainant was adopted in China on 18th of October, 2004 at the age of 16 months. The complainant and Ms. A returned to Ireland on 27th of October, 2004 and she was admitted into the Register of Foreign Adoptions on the 25th of November, 2004.

3.2 Ms. A applied for a secondary school place for the complainant on the 15th of March, 2005.

3.3 At that time the respondent’s Admissions Policy allowed applications to be ranked in accordance with the date of application. It is submitted that this policy placed the complainant at a disadvantage compared to an Irish child living in the care of their biological parents whose application could be submitted immediately following their birth. The complainant could not apply at such an early stage as she was sixteen months old before Ms. A, knew she would be adopted into her family. An application could not be made prior to that 16 months as Ms. A had no rights of custody in relation to B prior to her adoption. The complainant submits that delays of up to 2 years are common in relation to foreign adoptions.

3.4 The Admissions Policy of the respondent has since been revised and was applied retrospectively to the complainant’s application. The new Admissions Policy operates a two tier system with a “priority” group and a “standard” group. In the case of each group, applicants continue to be ranked in the order in which their completed Application forms and birth certificates were received. The policy provides that on the 1st of October of the year three years before the proposed year of entry (in this case 1st of October, 2012) the Principal will offer places to applicants. Places are offered first to applicants on the Priority list in the order in which they appear on that list. Any places remaining after offers are made to all those on the Priority list are offered to applicants on the Standard list in the order in which their names appear on that list.

3.5 When 120 offers of places in the First Year have been made, a new list (the Waiting list) of 50 names is created replacing the Priority list and the Standard list for that year of entry and again offers are made in the order which the applicants appear on this list in accordance with their date of application. As the complainant did not fall into the Priority category it was clear she would be dealt with in the Standard List.

3.6 By letter dated 30th of October, 2012, Ms. A was advised that all places had already been offered to pupils commencing in the school in September 2015. Ms. A was further advised that the complainant’s name was on a ‘waiting list’ but was so far down the waiting list that is was clear she would not be offered a place unless Priority Category 1 became applicable (there are 4 sub criteria in this category under which the complainant did not have eligibility). The admissions policy applied relates to the date of application of the child and Ms. A submits that this discriminates against the complainant on grounds of family status and/or race.

3.7 The Admissions policy applied disadvantages the complainant due to Ms. A’s inability as an adoptive parent to apply for a place, close to her birth date, due to her foreign adoptive status. If the complainant was Ms. A’s biological daughter, born in Ireland there would be no impediment to her submitting an application shortly after her birth in June 2003. However as she was not adopted for a further 16 months her application was delayed by a further sixteen months. Thus an adopted child will never be in a position to make as early an application as a child in the care and custody of her birth family. Thus her application was delayed by sixteen months due to her adopted status.

3.8 The complainant was further disadvantaged due to the fact that hers was an inter country adoption and as a child of Chinese national and ethnic origins she was not in a position to apply for a place to the respondent school as early as an Irish child or a child of Irish national origins. It is further submitted that the majority of adoptions which take place in Ireland are inter country adoptions (apart from those which relate to adoptions within families) and involve children from China, Russia and Vietnam. It is submitted that a report of the Adoption Authority in relation to 2004 (the year in which the complainant was adopted) indicates that there were 486 non family adoptions in total and that 398 or 82% of these were inter country adoptions involving children of a different race. Thus it is the case in inter country adoptions that the adoptive child is of a different race. Thus the complainant was also disadvantaged due to her race. It is submitted that the majority of Irish adoptions (82%) are in fact inter country adoptions and relate to the adoption of foreign born children. Thus the complainant as an adoptive child is not in a position to apply to the school close to her birth date and as the majority of Irish adoptions relate to inter country adoptions involving children of a different race this affects children of a different race more than Irish children.

4. Summary of Respondent’s case

4.1 The respondent is a long established girl’s only secondary school.

4.2 The school’s Admissions Policy provides for a Priority and a non-priority or Standard application list. Applicants are placed on the appropriate list in accordance with the date of their application forms. The complainant does not challenge the priority and non-priority categorisation. The complainant objects to the placing, her adopted daughter received on the non-priority or Standard list in accordance with her date of application.

4.3 The respondent submits that the complainant was not refused enrolment for the school year commencing September, 2015. The respondent further submits that the complainant was not offered a place in the school for that year by reason of the fact that, when the available places were allocated to the applicants on the priority list and thereafter when the remaining places were allocated to the to those on the non- priority list, all available places were filled before the complainant was reached on the non-priority list.

4.4 The respondent submits that all adopted applicants irrespective of race, colour, nationality or ethnic or national origins are in the same position. It is submitted that the complainant’s daughter is in the same position as all other adopted applicants to the respondent’s school and is at no particular disadvantage to other adopted applicants or to other applicants who did not live in the catchment area from birth.

4.5 The respondent submits that it does not enquire as to the birth status or race of any applicant to the school. The respondent further submits that it is arguable that to discriminate positively in favour of foreign born Irish adopted applicants would be discriminatory to Irish born Irish adopted applicants.

4.6 As recognised in the Christian Bros High School Clonmel Vs Stokes (2011 IECC 1), there is no mandatory requirement for positive discrimination in schools admissions policies. Admission policies are necessary as all applicants to schools will on occasion not gain admission due to the demand for places exceeding the number of available places hence appropriate criteria must be laid down to effect an appropriate admissions policy. Of necessity admissions policies must be fair and reasonable.

4.7 The respondent submits that even if it is established that the class of applicant in to which the Complainant falls is particularly disadvantaged by the Policy, then the issue arises as to whether the particular aspect of the policy complained of

• · Justifies a legitimate aim
• · Is appropriate, and
• · Is necessary

4.8 It is submitted by the respondent that the aim of the policy is to have a fair and reasonable applications policy consistent with the goals and ethos of the school. It is submitted that the purpose of the particular aspect of the policy complained of here is to be fair and reasonable in prioritising applications on the non-Priority list. Priority on the non-priority or standard list is operated on the basis of the date of application only. The respondent submits that this is totally transparent. It is submitted that this aspect of the policy is appropriate and necessary as to operate the non-priority list on any other basis would necessitate the introduction of other criteria which could not be objectively justified. In this regard the Policy is fair and reasonable. The respondent submits that the policy has been reviewed on several occasions in recent years and the respondent is of the view that this aspect of the Policy is fair and reasonable and appropriate and entirely in keeping with the requirements of the Education Act.

4.9 The respondent submits that it is bound by the requirements of the Education Act 1998 and in the context of its Policy by the provisions of Section 9 (m) of the 1998 Act which provides that a school shall use its available resources to establish and maintain an admissions policy which provides for maximum accessibility to the school. The respondent submits that it is also conscious of Section 15(2)(d) of the 1998 Act which states that the respondent must ensure the right of parents to send their child to a school of the parent’s choice are respected, as noted in the Judgement of Justice O’Keefe at pgh 45 in Lucan Educate Together National School v Department of Education and Science and Ors (2011) IEHC 86, there is no parental right to send a child to the school of their choice. The respondent submits that applicants who move into the respondent catchments area are also of relevance and questions whether such applicants to be allowed credit in the application process for the time spent living elsewhere before they knew they would be moving in to the catchment area. The respondent submits that this begs the question as to why there should be positive discrimination in favour of foreign born Irish adopted applicants and submit such discrimination would be unwarranted and unlawful.

4.10 The respondent submits that complainant brought an appeal under Section 29 of the Education Act in respect of the complainant’s failure to gain admission to the respondent’s school. The Policy and its application was assessed by the Department of Education and Skills in the course of that appeal and was found to be fair and reasonable.

4.11 The respondent submits that it has a maximum intake of 120 students every academic year. Traditionally, the number of applicants each year greatly exceeds this figure. For entry in September 2015 the respondent received 550 applications. In any given year many applicants will not gain admission. The respondent has framed a policy which is objectively justified and is not discriminatory.

5 Preliminary issue of Time-Limits

5.1 The respondent has submitted that the complaints relating to family status and the combined ground of family status and race were not submitted within the six month time limit as prescribed in Section 21(6) of the Equal Status Acts, 2000 to 2008, and it therefore submits that these aspects of the complaint should be deemed inadmissible. Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the referral of complaints, namely:

Section 21(6)-“6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.

5.2 The respondent submits that the original complaint as notified by form ES 1 to the respondent was one of discriminatory treatment on grounds of race. The respondent submits that the complainant has since sought to introduce two new claims of discrimination on grounds of family status and on the combined ground of race and family status. The respondent submits that these grounds were introduced by the complainant in her submission dated 3rd of May 2013. The respondent submits that the claims in relation to family status and the combined ground of family status and race are thus out of time as they were submitted outside of the 6 months time limit.

5.3 In examining the respondent’s submission I refer to the complainant’s ES1 form as sent to the respondent on 16th of November 2012. I note that the complainant has ticked the box marked ‘race’ but has not ticked ‘family status’, however it is clear from the details provided by the complainant in Section 4 of that form which provides the details of the alleged less favourable treatment, that the complainant does refer to the fact that the complainant’s daughter is adopted and also refers to the claim that the Respondents enrolment policy does not provide for the ‘unique circumstances surrounding children who were adopted’. The complainant goes on to detail how the respondent’s policy does not recognise the fact that (the complainant) was unable to apply for a place for her daughter either on or shortly after her date of birth unlike biological parents. She also states that the failure of the respondents “policy to recognise and provide for the specific circumstances surrounding children who were adopted indirectly discriminates against the complainants daughter. Thus the ES1 form submitted to the respondent in November 2012 clearly indicates that a claim is being made on the grounds of the complainant being adopted as well as her race. The ES3 form submitted to the Tribunal and forwarded to the respondent in December 2012 also outlines that the complaint relates to a claim in relation to the complainants daughter on grounds of her race as well as in relation to her adoptive status. The details of the claims were again set out in the complainant’s submissions of March 2013 and again in May 2013. I am thus satisfied that the respondent was on notice of the claims on grounds of the complainants adopted status and race.

5.4 In addition, It is clear from case law[1] that the ES 3 complaint Form is not statute based and it is permissible to amend a complaint provided the general nature of the complaint remains the same and there is no prejudice to the respondent. In the instant case it is apparent that the complainant in her referral form, attributed the matters referred to in her complaint to the race ground but in the detail of the form again outlined that her claim also related to the fact that she was unable to make an early application for her daughter due to the fact that her daughter was adopted.

5.5 I am thus satisfied that the nature of the claim has remained the same throughout and as the respondent was on notice of all matters referred therefore no prejudice to the respondent arose. Consequently, the complainant is entitled to advance her complaint on the race and family status grounds as well as on the combined ground of race and family status. What remains to be examined is whether the complainant’s adopted status falls to be considered under the ‘family status’ ground.

6. Conclusions of the Equality Officer

6.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race and/or family status in terms of sections 3(1), 3(2)(c)&(h), of the Equal Status Acts, 2000 to 2012 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2012 in relation to their failure to offer her a school place for the academic year commencing September 2015 and whether the Policy of ranking applications in accordance with their date of application is indirectly discriminatory on grounds of race and or family status towards foreign adopted candidates. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 Family Status ground

6.2.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified in subsection (2)....... A person is treated less favourably than another person is, has been or would be treated.”

Section 3(1)(c) provides, inter alia that discrimination shall be taken to occur where

“an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

Section 3(2) provides that: as between any two persons, the discriminatory ground of family status is,

(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’’),

The Equal Status Act sets out the definition of ‘family status’ as follows:

‘‘family status’’ means being pregnant or having responsibility —

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support

on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

6.2.2 The Equal Status Act does not differentiate between the biological parent of a child born to them and remaining in their care, and the parent of a child who is adopted into their care. It is thus clear from the Act that a biological parent of a child born to and remaining in that persons care is considered to have the same ‘family status’ as a parent who has adopted a child into their care. Similarly under the Acts no provision is made to differentiate between a biological child and an adoptive child.

Section 3(2) provides that: as between any two persons, the discriminatory grounds are,

(b) 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’’),

6.2.3 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘family status’ a complainant must be the subject of less favourable treatment on the grounds of having a different family status to a comparator or of having or not having a family status. In the present case according to the definition contained with the Equal Status Acts, the complainant does not have a different ‘family status’ to others cited as comparators. Thus a complaint cannot be grounded on the complainant’s adoptive status as it does not fall under the definition of ‘family status’ under the Acts. Accordingly I am satisfied that I do not have jurisdiction to examine a complaint on the ground of ‘adoptive status’ and this aspect of the complaint must fail.

6.3 Race Ground

6.3.1 Section 3(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “ It is submitted that the complainant in the present case is of Chinese national and ethnic origins.

7. Indirect Discrimination

7.1 Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
"where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".

7.2 The complainant claims that placing applicants on a list in accordance with the date of their applications indirectly discriminates against her on grounds of race. The race ground covers those of a different race, colour, nationality or ethnic or national origins… It is for the complainant to prove, on the balance of probabilities, that this criterion puts the complainant as an adopted child of Chinese national and ethnic origins at a particular disadvantage. If she succeeds in this, the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.

7.3 Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect her group [in this case foreign adopted children] more than Irish born non-adopted children and there is a consequent risk that it will place her group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of foreign adopted children. It is sufficient that it is liable to have such an effect.

7.4 Once the complainant has proved that the criterion puts an adopted child of a different ethnic or national origin at a particular disadvantage, it is for the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The respondent must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment.

7.5 According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.

7.6 The school operates a two tier system for allocating places. The first is Priority Category 1 and has the following sub criteria :

1. Sisters of current pupils

2. Attendees of a named feeder school

3. Children of current staff

The complainant has advanced no claim in respect of this aspect of the Admissions Policy.

The second aspect of the Policy relates to Category 2 or the standard list and this relates to all applicants who do not fall to be covered by Priority Category 1. The complainant has not taken issue with Priority Category 1 and accepts the fact that her application falls to be considered under Category 2 only. This is the Category under which the complainant’s application was dealt with and it is this aspect of the Policy that the complainant has raised as an issue.

7.7 Category 2 applications are ranked in accordance with their application date thus all applicants irrespective of their race, colour, national origins are required to submit an application form and their application is then ranked in accordance with the date on which their application is received. Thus in order to gain an early application date all applications should be submitted as early as possible and in some cases shortly after the birth of the child in order to gain a place on the list. This policy is applied to all applicants equally and irrespective of their national or ethnic origins.

7.8 The complainant is submitting that it is the way in which Category 2 is applied to rank applications according to the date of applications received which places her as an adopted foreign child and as a child of different national and ethnic origins at a disadvantage over non adopted children and children of Irish origins.

7.9 It is submitted that the complainant as an adopted child of Chinese national and ethnic origins was not in a position to submit her application to the respondent as early as other applicants of Irish national origins who are not adopted. Ms. A advised the hearing that the complainant was disadvantaged due to the fact that she was adopted and as such Ms. A was unable as an adoptive parent to apply for a place, close to her birth date due to the fact that the adoption process was not concluded until the complainant was sixteen months old. It is further submitted that the majority of adoptions which take place in Ireland are inter country adoptions (apart from those which relate to adoptions within families) and involve children from China, Russia and Vietnam. It is submitted that a report of the Adoption Authority in relation to 2004 (the year in which the complainant was adopted) indicates that there were 486 non family adoptions in total and that 398 or 82% of these were inter country adoptions involving children of a different race. Thus it is the case in inter country adoptions that the adoptive child is of a different race. Thus the complainant was disadvantaged due to her race.

7.10 Ms. A advised the hearing that the complainant as an adoptive child was not in a position to apply to the school close to her birth date and as the majority of Irish adoptions relate to inter country adoptions involving children of a different race this affects children of a different race more than Irish children. Ms. A advised the hearing that the complainant’s application was delayed by sixteen months due to her adopted status. She stated that this is the case with most Irish adoptions as the majority of these are inter country adoptions which can take from 6 months to 2 years to complete.

7.11 Having examined the evidence, I am satisfied that the complainant has demonstrated that she was disadvantaged by an apparently neutral provision on account of her foreign adopted status. Therefore, the complainant has established prima facie evidence of discriminatory treatment in relation to the Admissions policy applied in respect of applicants who fall into the non priority list or Category 2. Thus I am satisfied, from the totality of the evidence adduced, that the complainant has established a prima facie case of indirect discrimination on the ground of race which the respondent must now rebut.

7.11 The respondent prior to the hearing had submitted that even if it is established that the class of applicant in to which the Complainant falls is particularly disadvantaged by the Policy, then the issue arises as to whether the particular aspect of the policy complained of

Justifies a legitimate aim

Is appropriate, and

Is necessary

8 Legitimate aim

8.1 The respondent at the hearing declined to elaborate on the objective justification of the policy. It was submitted by the respondent prior to the hearing that the aim of this aspect of the policy is to have a fair and reasonable applications policy consistent with the goals and ethos of the school. It was submitted that the purpose of the particular aspect of the policy complained of here is to be fair and reasonable in prioritising applications on the non Priority list. Priority on the non priority list is operated on the basis of the date of application only. This is totally transparent. I am satisfied that the aim of the policy which is to have a fair and reasonable applications policy consistent with the goals and ethos of the school does constitute a legitimate aim. I must now however examine whether this aspect of the policy is appropriate and necessary.

9 Is it appropriate and necessary

9.1 The second limb of the test of objective justification is that the respondent must show that the provision was both an appropriate and necessary means of pursuing the legitimate aim. The word ‘appropriate’ means that the measure is suitable for achieving the aim in question and the respondent must show that the provision in fact advances the aim. A provision will be ‘necessary’ where there are no alternative, less discriminatory ways of advancing the respondent’s aim. In this regard, the Labour Court in the case of National University of Ireland, Maynooth v Buckley [2011] ELR 324 stated “This would normally require the respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons.” According to Mummery LJ in a UK case, “it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” The respondent in the present case declined to elaborate on this matter at the hearing however in it submission to the Tribunal prior to the hearing submitted that this aspect of the policy is appropriate and necessary as to operate the non-priority list on any other basis would necessitate the introduction of other criteria which could not be objectively justified. It is submitted by the respondent that in this regard the Policy is fair and reasonable. The respondent did not cite any examples of any other means of achieving this aim which may have been considered and disregarded. The respondent submitted that the Policy has been reviewed on several occasions in recent years and the respondent is of the view that this aspect of the Policy is fair and reasonable and appropriate and entirely in keeping with the requirements of the Education Act.

9.2 The respondent also submitted that it is bound by the requirements of the Education Act 1998 and in the context of its Policy by the provisions of Section 9 (m) of the 1998 Act which provides that a school shall use its available resources to establish and maintain an admissions policy which provides for maximum accessibility to the school. The respondent submitted that it is also conscious of Section 15(2)(d) of the 1998 Act which states that the respondent must ensure the right of parents to send their child to a school of the parents choice are respected, as noted in the Judgement of Justice O’Keefe at pgh 45 in Lucan Educate Together National School v Department of Education and Science and Ors (2011) IEHC 86, there is no parental right to send a child to the school of their choice.

9.3 The respondent submits that it has a maximum intake of 120 students every academic year. Traditionally, the number of applicants each year greatly exceeds this figure. For entry in September 2015 the respondent received 550 applications. In any given year many applicants will not gain admission. The respondent submits that it has framed a policy which is objectively justified and is not discriminatory. The respondent at the hearing declined to elaborate on its objective justification.

9.4 In examining whether the policy applied is appropriate and necessary I must question whether it is appropriate that the same rule be applied to all applicants in this category irrespective of personal circumstances. It is clear that the policy applied by the respondent allows for no exceptions and treats everyone the same irrespective of their circumstances.

In the current case the complainant is an adopted child who was born in China, of Chinese national and ethnic origins and who did not come to this country until she was almost 2 years old. It is also clear from the arguments advanced by the complainant that adopted children the majority of whom are from other countries (according to a report of the Adoption Authority of 2004 which was submitted in evidence by the complainant) are clearly disadvantaged by such a policy as their parents are not in a position to lodge an application immediately following their date of birth as the adoption process takes up to two years on average. In addition I note that this policy makes no provision for exceptional circumstances for example where a child may experience a change in circumstances and a change in address due to the loss of a parent or a change in parenting arrangements. It also makes no provision for children in foster care.

9.5 The complainant advised the hearing that other schools have changed their policies to accommodate adopted children of other national origins. The complainant cited an example of a named school whose policy has been adapted to make provision for foreign adopted children. The policy in question allows for applications to be back dated to take into account the amount of time which elapsed between the child being born and their adoption date. This puts parents of an adopted child in a similar position to that of biological parents who can submit an application for their child soon after the child is born.

9.6 The complainant also advised the hearing that other schools operate a single cut off date of application for each year and that this cut off date is taken as the date of application for each applicant and that places are then allocated by means of a lottery after that. It was also submitted at the hearing that many schools now provide a certain date on which applications must be made by children seeking to attend the following year. This approach permits an equal application date for all applicants irrespective of whether they were born in this country into the custody and care of their biological parents or whether due to their adoptive status or otherwise came to this country at a later time in their lives. This approach takes into account the changing demographics of Irish society in recent years with the increase in immigration resulting in children of foreign migrant workers moving to Ireland from other countries and thus requiring school places for which they would not have been in a position to apply for prior to their moving to Ireland.

9.7 In the absence of any supporting evidence being provided by the respondent at the hearing in support of the objective justification test, the complainant advised the hearing of options which would seem to meet the respondents aim to be fair and reasonable in prioritising applications for the non Priority list. This calls into question the respondent’s submission that the current policy is ‘necessary ‘to achieve that aim.

9.8 The respondent prior to the hearing submitted that to operate the non priority list on any other basis would necessitate the introduction of other criteria which could not be objectively justified. The respondent declined to elaborate on this at the hearing and therefore it is not clear as to how, without any evidence to substantiate this claim, or without testing any other criteria the respondent can say that such criteria would not be objectively justified. I am thus not satisfied that this statement in and of its own is enough to justify the claim that the current policy is necessary or that it is the only way of achieving that aim. I find therefore that the respondent’s policy is legitimate but that the respondent has not proven that the current policy of allocating priority in accordance with the date of application is necessary.

10. DECISION OF THE EQUALITY OFFICER.

10.1 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, I conclude this investigation and issue the following decision.

10.2 I find that the complainant has proved that the priority given to applicants based on date of application puts foreign adopted children at a particular disadvantage compared with Irish born children in the care and custody of their biological parents and that the respondent has not proved that this criterion is objectively justified by a legitimate aim and is appropriate and necessary. Accordingly, I find that the complainant was indirectly discriminated against on the race ground pursuant to sections 3(1) and 3(2)(h) of the Equal Status Acts. Under section 27(1) of that Act, redress may be ordered where a finding is in favour of the complainant. In considering the redress that I should award, I have taken into account the effect the discrimination had on the complainant. I am also mindful of the fact that the respondent at the hearing declined to elaborate on the objective justification of its policy.

11. Redress

11.1 In general the appropriate redress is to put the complainant in the position she would have been in but for the discrimination. If the school did not give priority to applicants based on application date, the chances of the complainant succeeding in being allocated a place on the list would have been significantly greater. It is impossible to re-run the allocation of places under revised criteria. In the circumstances I order:

(i) That the respondent immediately offer a place to the complainant.

(ii) That the respondent review its Admissions Policy to ensure that it does not indirectly discriminate against pupils on the ground of race contrary to section 3 (2)(h) of the Equal Status Act, and

(iii) That the respondent pay to the complainant the sum of €3,000 to compensate her for the effects of the discriminatory treatment experienced by her.

____________________

Orla Jones

Equality Officer

6th of February, 2015
 

Footnotes

[1] See Louth VEC v The Equality Tribunal [2009] IEHC 370