Complainant

Respondent

Anonymised Parties

A parent

A police force

Representatives

None  

Legal Affairs Unit, Garda Headquarters

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00002086-001

20 January 2016

The complainant is a separated father and asserts that he was discriminated against and harassed by the respondent in seeking to meet his daughter, pursuant to an access order. The respondent denies the claims.

In the complaint form, the complainant outlines that this relates to incidents on the 2nd and 4th September 2015. He states that the respondent’s intrusive behaviour has removed him from his children’s lives. He describes that they have acted as a court of third instances and as the “personal bouncers” of his separated spouse (referred to in this report as ‘the other parent’). He describes that his children were “abducted” to a town in August 2011. He outlines that the respondent treated him, as a man, as less integral to his children’s welfare and this was gender discrimination. The discrimination on the civil status ground was that they prevented him, as a separated parent, having a role with his children unless the other parent approved.

The complainant outlined that he obtained court-ordered access on the 23rd February 2011 and this was upheld by the High Court on the 13th May 2011. He outlined that the other parent refused to cooperate with his access following the incident of the 14th February 2014 incident (addressed in ES/2014/0181) where “a Garda had overturned the court order”.

In respect of the 2nd September 2015, the complainant outlined that he attended the house where the other parent and his child lived in order to take his daughter to school, or even just to talk to her. There had been previous occasions where he had been able to speak with his daughter on her way to school. This time, the other parent had contacted the Gardaí. He described the Gardaí as previously being tactful, polite and respectful.

On the 2nd September 2015, the complainant said that his phone camera was “on” and visibly recording. Three Garda attended the scene and were aware of his phone. One Garda was polite and greeted him as he was standing on the road. They did not talk to him and understood what was going on. The complainant spoke to a second Garda and asked for his name; he replied that he would give it later. The complainant asked one Garda not to speak with his daughter as his daughter had made false allegations about him. The child had had no choice because of the presence of the other parent. This Garda ignored the complainant’s request and entered the dwelling; the other two Garda waited outside. A Garda asked the complainant to turn off his phone and then grabbed it, refusing to return it. The Garda come out to say that the complainant’s daughter did not want to see him. He asked the complainant for his contact details and as the Gardaí stood in his way, the other parent and child left the dwelling and went to their car.

The complainant asserted that the Gardaí had facilitated a breach of a court order. The complainant presented the 2011 order but at the adjudication accepted that the order of the 2nd December 2013 was in place at the time of the incident. He further said that a Garda placed his hands on his shoulder. For him, this was because he was separated and a man. There was an automatic presumption of guilt. The Garda had not asked him about the situation or the court order. The complainant referred to videos of the events of the 2nd September 2015. He submitted that they showed that he mentioned his access order and that he had not been agitated. In cross-examination, it was put to the complainant that there was contradiction between his ES1 form where he said that a Garda was rude when he was saying she was polite today.

The complainant submitted that the respondent was the lynchpin in preventing him from getting access to his child after they moved to the named town. He said that on the 4th September 2015, he wished to see his daughter. There was no order barring him from seeing his daughter. Applications for safety and protective orders had failed in all courts. The complainant went again to the house of the other parent as he did not wish to attend the school. The complainant brought a witness. Two named Gardaí attended and he already knew one of the Garda for some time. The complainant had his phone around his neck and this Garda advised him to switch off the phone or they would leave. The complainant did not turn his phone off and they left. 15 or 20 minutes later, they returned and went straight to the house. The complainant shouted at them not to speak with his daughter. They ignored him. One Garda then came out of the house and told the complainant that his daughter did not want to speak with him. The other Garda held the complainant against the railing and reached to switch off the phone. One Garda escorted the other parent and child to the car as the other Garda blocked him. His daughter was crying and the complainant stood from a distance. He said that the most important thing was that he saw her and she saw him. The complainant said that the Gardaí had taken a confrontational, aggressive approach. They could speak with his daughter, when he was unable to.

The complainant said that the other parent moved to the named town to lessen his connection with his children and this occurred with the full assistance of the respondent. He referred to the letter of the 7th July 2016 describing this as “an abduction to [named town]”. He said that the respondent had been the biggest block to him having a relationship with his child. He said that the repeated questions by the respondent to his daughter were very damaging to her.

In closing comments, the complainant said that it was a lie for the Gardaí to say that he was at the top of the stairs when they arrived at the house. This was why the witness was necessary to give evidence. They arrived at 8.15am and returned at 8.30am. His witness had also been pushed away. He commented on a judicial reference to bitter matrimonial disputes and the risk of undue influence. He submitted that the pattern of discrimination started with the abduction of the child to the town. He was not told where they moved to and his access order became non-operational. The respondent could not claim that his daughter had contacted them and they should not have spoken to her. There was no response from the respondent when he could not see his daughter. He submitted that the discriminatory policy adopted by the respondent had damaged his relationship with his two children. The relationship with the youngest child had been hanging by a thread and this had been cut by a named Garda.

The complainant submitted replying legal submissions on the 31st May 2017. Referring to the case of Donovan v Garda Donnellan (DEC-S2001-011), he submits that he was seeking to exercise his rights under Court orders so the Garda intervention cannot be to have been in respect of the investigation or the prosecution of a criminal offence. The complainant emphasises section 31 of the Guardian of Infants Act, 1964 and the “voice of the child”. The complainant submitted that the respondent was providing a service, irrespective of who called them. The events took place in public places. The complainant asserts that the Garda questioning his child in the presence of the other parent was related to alienating dynamics. He submits that the Gardaí involved in the incidents made judicial determinations pursuant to the Guardianship of Infants Act and the Education Act. He submits that the Gardaí did not attend the scene to investigate, arrest or charge him for a crime; they attended the scene as a service provider related to the complainant’s lawful exercise of court orders regarding access to children.

The witness provided a written statement dated the 29th May 2017. He states that the complainant had a court order permitting him to see his daughter. On the 4th September 2015, they attended the dwelling and met a named Garda. They sought to record the interaction and the Garda objected. The complainant informed the Garda that he did not have his consent to speak with his child. The Garda physically immobilised the complainant and caused him pain. He observed the other parent and the child being escorted to the car.

The respondent made submissions in advance of the adjudication. The respondent raised several jurisdiction issues. It refers to the definition of “service” set out in section 2(1) of the Equal Status Acts and submits that it was not providing a service to the complainant within the meaning of the section. Its members attended in accordance with their functions under section 7(1) of the Garda Síochána Act, 2005. It referred to section 14 of the Equal Status Act and the decision in A Complainant v An Garda Síochána (DEC-S2005-037). It submits that the complainant’s interaction with the respondent was as a direct result of the statutory functions of the respondent and it was, therefore, entitled to rely in section 14. It submitted that members of the public cannot claim discriminatory discrimination where members of the respondent perform functions pursuant to section 7(1) of the Garda Síochána Act, 2005.

In substantive submissions, the respondent outlined the complainant must show that,

objectively, he has established a prima facie case of discrimination. Relying on Burke and others v Bar Rumba (DEC-S2002-072-76), the respondent referred to a three-point test:

“(a) Membership of a discriminatory ground (e.g. the Traveller community ground)

(b) Evidence of specific treatment by the respondent;

(c)  Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.

The respondent submitted the complainant had not established a prima facie case of discrimination required by section 38A of the Equal Status Act.

Incident of the 2nd September 2015

A Garda gave evidence that on the 2nd September 2015, they called to the other parent’s home. She passed the complainant and said “good morning” and walked up the steps to the front of the house. The complainant shouted at her not to speak with his daughter. She was then invited inside by the other parent and spoke with her. The other parent referred to her daughter being afraid of going to school because of ongoing issues. The Garda said that the daughter then said to her, unprompted, that she did not want to leave. The daughter was upset. The Garda said that she would speak with the complainant.

The Garda said that she then left the dwelling and approached the complainant. She advised that she had spoken to his daughter and they were afraid to go to school. She asked the complainant for his details and he then started for the other parent and daughter as they got into a car at haste. The complainant was shouting at his child and the Garda asked him to stop. He was shouting “hello” and other greetings. The car then started to move and the complainant sought to get in the way of the car. She told him that this was very dangerous. The other parent then left. The complainant then provided her with his details.

In cross-examination, the Garda acknowledged that she heard the complainant shout not to speak with his daughter. She took this on board. She stated that his daughter spoke to her without being prompted. She said that she listened to both sides in every situation and took it on board. The sides have equal weight. It was put to the Garda that the complainant was discriminated against when she went straight to the house and made her decision without hearing from him; she replied that they had been called by the other parent and spoke to her and the daughter first. She then spoke with the complainant. The Garda denied placing her hands on the complainant. She described the complainant as shouting greetings such as “hello” and that he was gesturing with his hands in his approach to the car. The complainant stated that he had only said his daughter’s name and he had not blocked the car.

The second Garda gave evidence. They attended the dwelling on the 2nd September 2015 following a phone call from the other parent. He observed that the complainant was recording and they spoke with the complainant, who was agitated. He took the phone to see what was on the phone and to see if there was any evidence of the incident. He then handed the phone back to the complainant, who stood in front of the car, shouting. Their concern was whether this could lead to a breach of the peace and they dealt with this call in the same way as any other.

In cross-examination, the Garda said that the issue of a child being in danger arose as the phone call referred to a child and a man standing outside. It was put to the Garda that there was a pre-determination that the complainant was unsafe; he replied that he could not recall any circular about this family situation. He observed that the complainant was agitated and not settled. He seized the phone to see if there was any evidence and then handed the phone back. The Garda did not accept that the complainant had said that an access order was not being complied with.

The third Garda gave evidence of attended the dwelling after a phone call, which referred to a male outside the caller’s house and a child not being safe. The Garda said that he stayed outside and gave the complainant their names and ID numbers. The complainant was agitated and shouting. The other Garda took the complainant’s phone and then returned it. When the other parent left the dwelling, the complainant was shouting and entered the road way. The Garda asked the complainant to leave the road way clear. They had dealt with this as a normal domestic where they speak with both sides. Their first priority was the child. He commented that the complainant was not making sense. He outlined that in a case involving a child, their priority was the child and they make no decisions regarding the parents. They took each call on its merits. Race, gender and marital status were not factors. In cross-examination, the Garda said that there was no prejudice against fathers and they take each call on its merits. They did not ask about court orders, as this was not why they were there.

Incident of the 4th September 2015

A Garda gave evidence that they attended following a call to the station. They treated the incident as a domestic. His colleague entered the dwelling and spoke with the other parent. He stayed outside with the complainant and his witness. Both had phones and the Garda said that he did not consent to being recorded. He said that they would wait outside while the other parent and daughter went to school. As this happened, the daughter grabbed the arm of the other Garda and looked afraid as the complainant tried to speak with her. He said that at every domestic, he treated everyone the same and dealt with the incident on its merits. A complaint had been made to GSOC. In cross-examination, the Garda did not accept that he had first called to the scene at 8.15am and left. They attended at 8.30am and went straight to the house. He said that the complainant and his witness had been at the steps. It was put to the Garda that he had met the complainant many times, for example at an incident in 2013; the Garda could not recall this.

The second Garda gave evidence of calling to the house. The other parent referred to the daughter as being afraid. The daughter was upset. The Garda went to the front door and was followed by the other parent and the daughter, who grabbed her arm as the complainant approached them. Both were upset and the daughter was crying. In cross-examination, the Garda said that they called immediately to the house. It was put to the Garda that she had not sought his consent when speaking with his daughter; she replied that she spoke with the person who made the call and her colleague had spoken to the complainant.

The Garda Superintendent gave evidence and said that he started in this role in the District Office on the 9th March 2015. He said that they did not discriminate against any one on grounds of gender, civil status or family status. There were 70 pieces of correspondence between the complainant and the respondent in the years 2012 to 2016, 32 of which were sent in his time. They had a record of the complainant’s letter of the 7th July 2016 and this was acknowledged on the 8th July 2016. He outlined that two sergeants had met the complainant in August and September 2013 to discuss the access issue involving the older child.

In closing comments, the respondent refuted the allegation of discrimination. The respondent had a statutory mandate and provided a service to everyone in the community. They also follow specific policies to ensure that everyone is treated the same. The respondent responds to calls and in this case, they dealt with both the caller and the complainant. They dealt with the situation and did not engage in favouritism. They did not discriminate against the complainant, who had not advanced facts of such sufficiency to meet the legal test. He had not witnessed his daughter’s conversations with individual Gardaí.

The parties made submissions in relation to the complaints of discrimination and harassment. The complainant gave evidence in relation to the above incidents and five Gardaí and the Superintendent also gave evidence on these specific complaints. I have considered their evidence and submissions in reaching these findings. The incidents arose on the 2nd and 4th September 2015, when the complainant visited the home address of his daughter and the other parent. The visits occurred at the time of day the child would leave her home to attend school. Gardaí attended on foot of phone calls from the other parent.

The parties referred to a multiplicity of court proceedings and court orders related to this matter. There was reference to a Circuit Court order of the 23rd February 2011 and a High Court order of the 11th May 2011. There was reference to a further access order of the 2nd December 2013, which related to access visits taking place at the hotel. The complainant exhibits a Court order of the 23rd February 2011, which, inter alia, dispenses with a Safety Order and Barring Order made on the 28th January 2009 in respect of the complainant, and provides for an Isaac Wunder Order in respect of the complainant applicable to any Court District, Circuit or High.

The Equal Status Act defines “service” as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies”

The complainant asserts that he was discriminated against in his interactions with the respondent and subject to harassment. The respondent submits that it was not providing a service to the public when Gardaí attended call-outs. It further refers to section 14 of the Equal Status Acts and section 7 of the Garda Síochána Act, 2005. It submits that it was acting pursuant to an enactment (as set out in section 7) and so it is entitled to rely on section 14 of the Equal Status Acts.

I accept the respondent’s submission that it is entitled to rely on section 14 of the Equal Status Act when responding to a call from the member of the public in these circumstances. It falls within the functions of the respondent set out in section 7(1) of the Garda Síochána Act, 2005, for example preserving peace and public order. It is not required that there be a breach of the peace or a public order offence for the respondent to be able to rely on this provision. In this case, they responded to a phone call from a member of the public regarding a potential incident and attended the scene. This fact is sufficient for the respondent to avail of section 14 and the acts of the Gardaí in question could not be acts prohibited by the Equal Status Act. For completeness, I note the professional approach taken by the Gardaí who attended the two incidents and who ensured that the child attended school. Furthermore, I find that no fact has been adduced that suggests the complainant was harassed by the respondent.

CA-00002086-001

I decide that the actions complained of by the complainant were actions required by statute and, pursuant to section 14 of the Equal Status Acts, could not be prohibited acts. The complaint does not succeed.

Equal Status Act / Section 14

Section 7, An Garda Síochána Act, 2005