DEC-S2018-016

EQUAL STATUS ACTS 

DECISION NO. DEC-S2018-016 

PARTIES:

A parent

(Complainant)

 AND 

An Garda Síochána

(Respondent)

File reference: ES/2014/0181

Date of issue: 19th June 2018 

1. Introduction:

1.1       On the 9th September 2014, the complainant referred a complaint to the Equality Tribunal/Workplace Relations Commission pursuant to the Equal Status Acts. The complaint relates to discrimination and harassment on the grounds of gender, civil status and family status.

1.2       On the 21st February 2017, in accordance with his powers in Part III of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 16th March 2017.

1.3       This complaint was heard along with ADJ 1491, involving this same complainant and respondent. The complainant attended the adjudication and was accompanied by a witness. The respondent was represented by its Legal Affairs Unit and eight Garda witnesses gave evidence. The complainant asked for time to make supplemental legal and evidential submissions, and did so on the 31st May 2017.

1.4       This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

1.5       Given the sensitivity of the issues and because they relate to children, the report anonymises the identity of the complainant.

2. Summary of the complainant’s case:

2.1       The complainant outlined that this issue arises from family court proceedings. He married in 1990 and came to Ireland in 2001. On the 23rd February 2011, he obtained court-ordered midweek and overnight access, but his spouse (referred to in this report as ‘the other parent’) refused to comply. He obtained a High Court order to this effect on the 13th May 2011. The other parent and their children moved to a named town in April 2014. The complainant was not provided with their new address. Without this address, the complainant was unable to serve a penal endorsement on the other parent for non-compliance with a Court order. In the course of the adjudication, the complainant said he was relying on the order of the 2nd December 2013, which provided that access would be supervised by the other parent and take place at a named hotel in the town.

2.2       The complainant outlined that the incident of the 16th February 2014 occurred at the hotel in question. The Gardaí were called by the other parent, who had gone into the hotel bathroom with his daughter. The complainant told one Garda in attendance that he had court-ordered access. The Garda replied that she did not care and she would not be allowing access. She informed the complainant that she was overruling a Circuit Court order. He described this Garda as extremely hostile. The complainant said that the Gardaí should have advised the other parent to comply with the court order.

2.3       The complainant said that he requested the respondent to provide him with the address where the other parent and his children resided. He made such requests on the 16th and 30th March 2014 but the respondent Garda on duty refused to give him this information. He wrote to the Garda Superintendent to ask for the whereabouts of his children. On the 16th April 2014, a named Inspector refused to supply this information. He stated that they did not have the information on file. The complainant submitted that the Garda would have helped him had he been married. The letter was an act of discrimination. He was the child’s guardian and it was the Gardaí’s obligation to find the children.

2.4       The complainant takes issue with the tenor of a phone call he had with a named Garda on the 4th June 2014. In the phone call, the complainant asked the Garda for the address where his children lived. The complainant asserts that he was shouted at and was accused of harassment. He described this Garda as aggressive. This Garda’s actions prevented him from seeing his child. He referred to a Pulse record of this date, where the school principal reported an incident involving the complainant. There were separate Equal Status proceedings against the school. The complainant submitted that if he had a family and was married, the respondent would have helped him. This was discrimination on grounds of gender, family status and civil status. The respondent was willing to take calls and to act when a mother called but this is not the position when a father calls. It deems the mother as the superior parent.

2.5       The complainant referred to the case of B v B [1975] I.R. 54, which held that courts or other bodies could not displace the role of parents and guardians. A parent who was deprived of custody could still act as a guardian. In this case, the respondent had informed the complainant that they only needed the consent from one parent to speak with his children. The complainant relied on NMcK v the Information Commissioner [2002 No. 85 MCA], which held that there was a presumption that parents act in the best interests of the child. The Gardaí should have told the complainant of his children’s whereabouts and should not have spoken to his child. In the case of A Father v a Health Service Provider (DEC-S2013-009), there was a finding of discrimination on grounds of gender, race and family status where the respondent refused to give the whereabouts of a child. In A Complainant v A Hospital (DEC-S2010-046), it was discriminatory to ask a separated parent to go through a solicitor to get medical information. In Shaw v Hungary 6457/09, the European Court of Human Rights held that Hungary violated Article 8 in blocking a parent’s relationship with a child.

2.6       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.

3. Summary of the Respondent’s case:

3.1       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.

3.2       In substantive submissions, the respondent outlined the complainant must show, objectively, that 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.

3.3       A Garda gave evidence of attending the hotel on the 14th February 2014. She outlined that they received a call regarding an access issue at the hotel. She and another Garda called to the hotel and met the complainant, who said he wanted to see his daughter. He told the Garda that the child and the other parent had gone into the bathroom. The Garda entered the bathroom and spoke with the other parent and the child. The child was distressed and crying. She did not want to meet her father and wanted to go home. The Garda said that she was not aware of a court order. She asked the other parent whether there was such an order and could not recall what her reply had been. The Garda said that she then explained to the complainant that his daughter did not want the visit to take place and that she was upset. He replied that there was an access order in force and she replied that she was not aware of an access order. She advised both parties to consult their solicitors and that the matter would be recorded on Pulse. She said that this was her first interaction in this matter. She had not said that she was blocking court-ordered access. Her role had been to prevent a breach of the peace and for the welfare of the child. She had dealt with similar incidents in this way and they did not know the background or what orders were in place. They acted in this way, irrespective of gender. The welfare of the child was paramount.

3.4       It was put to the Garda that she had not spoken to the complainant prior to entering the bathroom; she replied that she had greeted the complainant. She said that the complainant’s daughter was upset and told her that she did not want to meet him. She could not recall how busy the area was or whether it was packed. She acknowledged that the complainant had referred to a court order and she advised the parties to see their solicitors. She would give the same advice to a married couple. It was put to the Garda that he had said he had court-ordered access and she replied that she would not be allowing access; she denied saying this.

3.5       The Inspector gave evidence. He outlined that he had correspondence with the complainant for over a year about surrounding issues. The complainant wrote in April 2014 to ask for the address; he replied to say that they did not have the address of the other parent. The Inspector said that he did not have the address sought by the complainant and even if he had the address, he would not have provided it. He relied on section 62(5) of the Garda Síochána Act in not doing so. He would also only give information pursuant to a court order or pursuant to the Data Protection Acts. The Inspector refuted the allegation of discrimination and referred to his own civil and family status. He outlined that the Garda who took the 4th June 2014 phone call stands by his report (submitted to the adjudication). In cross-examination, the Inspector said that he was unaware of any issue with drugs and the complainant’s older child. He was asked whether he would help an unseparated father in finding their child; he disputed the premise of the question that this was equivalent to a missing person case. It was put to the Inspector that the phone call of the 4th June 2014 had been an angry one; he replied that the Garda stands by his report.

3.6       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. The complainant had also not witnessed his daughter’s conversations with individual Gardaí.

4. Findings and reasoning:

4.1       The parties made submissions in relation to the complaints of discrimination and harassment. The complainant gave evidence in relation to the above incidents and two members of the respondent also gave evidence on these specific complaints. I have considered their evidence and submissions in reaching these findings. There are two distinct issues to be addressed. The first is whether the respondent discriminated against the complainant in not providing him with the address of the other parent. Related to this is a complaint of harassment where the complainant raises how he was treated on the phone by a named Garda. The second issue relates to the events of the 14th February 2014 where the complainant sought to meet his daughter pursuant to an access order.

4.2       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.

4.3       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 sought to avail of a service from the respondent in the interactions set out above and that he was discriminated against and harassed in doing so. 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.

4.4       The complainant asserts that the respondent discriminated against him in not providing him with the home address of the other parent, where his daughter also resided. He states that this was discrimination on grounds of civil and family status. The respondent replied that it did not have this address and in evidence at the adjudication, it said that even if it had the address, it would not have provided it to the complainant. Having assessed the evidence, it is clear that the respondent does not provide a service to the public in disseminating home addresses of members of the public. The respondent is not Directory Enquiries or Thom’s Directory. As there is no service, there is no claim of discrimination in the provision of a service.

4.5       The complainant asserts that the tenor of a phone call of the 4th June 2014 constituted harassment. The Garda in question did not give evidence to the adjudication. As I have found that there was no service, it follows that there can also be no successful claim of harassment. Notwithstanding the Garda’s written denial of the accusation, I note that, even at its height, the accusation would not meet the definition of harassment in section 11 of the Equal Status Act. The evidence does not suggest that the phone call violated the complainant’ s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for him.

4.6       In respect of the 14th February 2014, I note that the Gardaí attended following a phone call from the other parent. They encountered a situation where the complainant was on the hotel premises, while his daughter and the other parent were in the bathroom. The Garda’s evidence was that the daughter was upset and did not want to see the complainant. The Garda relayed this position to the complainant. On the evidence, I am satisfied that the Garda did not suggest over-ruling a Court Order. She described to the complainant what his daughter had said. This could not amount to an act of discrimination. Furthermore, there was no obligation pursuant to the Equal Status Act for a Garda in this situation to compel a child to participate in an access visit. The Garda dealt with this situation in a professional and restrained manner. There is no fact that could raise an inference of discrimination. For completeness, I find that the respondent did not harass the complainant on the 14th February 2014.

4.7          For completeness, I accept that the respondent 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. 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.

4.8       For the reasons set out above, the complaint is not well founded.

5. Decision:

5.1       In reaching my decision, I have taken into account all the submissions, written and oral, made by the parties. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation. I decide that the respondent was not providing a service to the complainant when he sought an address. I decide that the respondent did not harass the complainant. 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.

Kevin Baneham

Adjudication Officer / Equality Officer

19th June, 2018