ADJ-00028397

Complainant

Respondent

Anonymised Parties

A father

A Therapist

Representatives

ÁIne Curran O'Mara Geraghty McCourt

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036469-001

01/06/2020

This case involves a child of the Complainant and a therapist, who was providing therapy to the child on foot of a High Court Order. In order to protect the identity of the child, the matter was heard in camera and the decision will be anonymised. The child will be referred to as XX, the first Respondent will be referred to as “the therapist” and the second Respondent as “the Centre” 

The Complainant withdrew his claim against the second named Respondent centre. He proceeded against the therapist only.

The Complainant alleges discrimination on two separate grounds in relation to the provision of goods and services namely: - Gender and Family status.

He alleges that there was a failure to obtain consent and that he was selectively and constructively excluded from the provision of services to his daughter, that he was not placed on an equal footing and was ignored in favour of his ex-wife.

The Complainant submitted a twenty-two-page reply to the Respondent’s submission. That reply is taken as read into the record and will be considered in conjunction with the Complainant’s oral evidence which can be briefly summarised as follows:

The Complainant stated that when the Respondent stated “It is clear that the issues raised were fundamental and undermine the therapeutic services and relationship which is founded on trust and where trust does not exist, the therapeutic relationship and service is compromised” that statement he alleges, is paramount to all that has happened.

He questioned how only one parent was engaging in the process in relation to XX. Why hadn’t the second parent been given the contact details or informed of the process? How could the parent involved in the process be allowed to inappropriately persuade the process when their view point, is clearly biased in favour of their own position? All of that amounts to negligence on the part of the service provider. The Complainant found out through Court proceedings who was providing this service to XX and it was he who contacted the Centre. On Friday 6th March he was informed by the Therapist that she had started therapy with XX a week before. She did so without the knowledge or consent of the Complainant and in breach of the Centre’s own guidelines. In doing so she treated one parent, the female, more favourably than the other, the male. The Complainant emailed the Respondent on 7th March and stated;” it would be my preference as per the ‘Centres’ own recommendations to be a part of the process”. The Centre makes provision for joint or individual parental meetings depending on the circumstances. The Respondent knowingly, wilfully and purposely contravened its own guidelines. The Respondent commenced the process knowing that she only had partial biased information and therefore “obstructed and frustrated the proper discharge of the High Court Order”.

Everything after this point is irrelevant or superfluous.

XX’s mother’s solicitor was aware that the Centre either needed an Order or the father’s consent. They quoted it in correspondence.  “That means that they either needed the Complainant’s consent or an Order dispensing with his consent. The Respondent has produced neither in evidence.  It is not for one party to unilaterally (by the provision by them, of inappropriate, inappropriately persuasive, biased and misleading correspondent from her own source of non- independent provenance) the terms of engagement where they clearly suit her position and the clarification is provided, not contested, to her advantage and to the exclusion of the other party”.

The fact that the therapist commenced sessions with XX without the knowledge or consent of the Complainant is discriminatory as it is treating him less favourably that his ex-wife.

The first Respondent is a therapist, providing Art Therapy to children. 

The Complainant’s child was attending the therapist for Art Therapy. The Complainant’s ex-wife, originally made an enquiry of the centre on 11 February 2020 and advised them of partial details from a Court Order relating to Family Law proceedings between the Complaint and herself, relating to their child. She also provided the centre with an email from her to her Solicitor in which she enquired if the Complainant’s consent for the Play Therapy under the High Court Order was required, as she had been informed that she needed a Court Order or the Complainant’s consent. Her Solicitors responded on the 5th February 2020 as follows: -

“I confirm Judge Flaherty directed as follows: -

“The Applicant to organise Play Therapy for XX, the Court noting the Respondent’s information, in the course of the appeal hearing that he was agreeable to such a course of action.”

This should be sufficient for the Play Therapist. Let me know if you want me to clarify anything with them. I cannot give them a copy of the Court Order as the in-camera rule was not lifted specifically in that regard, but I can confirm Judge Flaherty was insistent the Play Therapy be commenced forthwith”.

The centre forwarded the e email/referral to the therapist, and therapy commenced on 19 February 2020.

The Complainant made contact with the therapist regarding the commencement of therapy, and the therapist replied to the Complainant on 6 March 2020, confirming that Child Therapy had started, and welcoming his input into the therapy process and offered a parental consultation.

By email dated 7 March 2020, the Complainant responded, advising that he was “somewhat surprised and at a loss to understand how child therapy had commenced without contact having been made with me in the first instance to better inform the background as to how and why XX had been brought for Child Therapy”.

 By email dated 9 March 2020, the therapist replied to state that the therapy was commenced and referenced the Order of the Court, and as a consequence of the Court’s direction, that it did not appear that consent was required from both parents. The Complainant was offered an appointment for a parental consultation.

By email dated 10 March 2020, the Complainant responded. He particular details regarding the Family Law proceedings and issues that arose in same, and in particular issues between the Complainant and his ex-wife.

On the 11th March the therapist had to cancel the meeting with the Complainant and she informed him by e-mail. By email dated 12 March 2020, the Complainant acknowledged the email and proceeded to make observations and criticised the therapist for an absence of feedback, the absence of an invitation to partake in the first instance, or a genuine reason or explanation for the cancellation of the appointment, and proceeded to state that the process was “distorted, unilaterally misinformed and thereby ineffectual and disconcerting and gives me to believe that XX’s mother is, as ever, exercising undue influence over the process”.

By email dated 19 March 2020 feedback from the first three sessions were sent to the Complainant and his ex-wife. By email of the same date, the Complainant responded and criticized the therapist, noting that she was not proposing “facilitating both parents (contrary to your own facilities best practice guidelines) in providing background to XX’s current predicament, which means the process for XX will be unbalanced, misrepresented and not be full complete or wholesome. I have liaised with other child therapy professionals in this regard and am surprised and disappointed that centre would deviate from acknowledged best practice. My wish is to fully engage in the process, and I expect you will not block me but will rather engage with efficacy in achieving best outcome for XX. In the absence of the above XX’s mother’s obligations under the High Court Order will not have been met”

By email dated Friday March 20 2020 the therapist reverted to the Complainant to confirm that she had conducted a brief review with XX on or her own, and her mother by telephone, after completion of three sessions, the third session which had completed prior to postponing of all sessions due to covid 19. The therapist confirmed him that XX had engaged well in the therapy process and had settled in the therapeutic space. It was confirmed that XX presented as kind and considerate towards others and thus far the therapist had not observed any cause for concern regarding her emotional wellbeing. She confirmed that the plan was to continue for a further six sessions whenever possible in order to provide XX a therapeutic space to express and process her inner thoughts and feelings and another review would then take place.

The Therapist and the centre then considered the situation that arose and in particular the contents of the emails issued by the Complainant on 19 March 2020, 12 March 2020, 10 March 2020 and 7 March 2020. It was clear to the Therapist that the Complainant had raised issues regarding her professionalism, integrity and practice, which are fundamental to the therapeutic relationship. It was clear that the issues raised were fundamental and undermine the therapeutic services and relationship which is founded on trust and where trust does not exist, the therapeutic relationship and service is compromised. As a consequence, she wrote to the Complainant and his ex-wife advising that she was withdrawing her services and concluding the therapy.

The Complainant alleges that he was discriminated against on two grounds, gender and family status as set out in the complaint form dated the 01.06.2020. The ES1 alleges a third ground, civil status.

Section 38A of the Equal Status Acts 2000 - 2015 sets out the burden of proof which applies to claims of discrimination.

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F87 [ Director of the Workplace Relations Commission] under section 23(1) , facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The Complainant is required, at first instance to establish facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  Mitchell v Southern Health Board [2001] ELR201 emphasised that, in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment”.

 In Melbury v Valpeters EDA/0917 The Labour Court elaborated on the interpretation of Section 85(a) where it stated that Section 85(a) of the Employment Equality Acts: “Provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85(a) places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The issue to be determined in this case is whether or not the therapist required the Complainant’s consent to provide therapy to his daughter on foot of a High Court Order  and, if consent was not required, did the Therapist discriminate against him in relation to the provision of a service to his Child when she only liaised with the child’s mother up to the point when the Complainant made contact with her. 

The Court Order directs ““The Applicant to organise Play Therapy for XX, the Court noting the Respondent’s information, in the course of the appeal hearing that he was agreeable to such a course of action.”

The Order is clear and unambiguous in relation to the commencement of Play Therapy but also in relation to the Complainant’s consent to that course of action.

It would be entirely inappropriate of me to look behind the Court Order and I do not intend to do so. I am satisfied based on the wording of the Order that the Complainant’s consent was not required in Order for the therapist to provide the service to his child, XX.  I find that XX’s mother, as the parent with primary care and control of XX and being the Applicant referred to in the Order, was obliged to comply with the Court’s directions and once she engaged the therapist and the therapist was made aware of the Court ordered therapy, she was perfectly entitled to provide that service with only the mother’s consent. Furthermore, on any objective reading of the Order, the Complainant was noted to be “agreeable to such course of action“.

Having carefully considered the matter I find that the Complainant has failed to establish a prima facia case of discrimination on any of the grounds alleged.

The Complainant has failed to establish a prima facia case of discrimination on ground of gender or family status. The complaint must therefore fail.