Complainant

Respondent

Anonymised Parties

A Father

A Clinical Psychologist

Representatives

Fergal Fitzgerald Doyle BL                            Ms. A Polcig                                  Brady Kilroy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047646-001

14/12/2021

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021)  the hearing is conducted in recognition of the fact that the proceedings constitute the administration of Justice.  However, as Adjudication Officer I have decided that on foot of an application brought by the Complainant (as a party to the proceedings), that due to the existence of special circumstances, the proceedings should be conducted in private. The Special circumstances relate to the clinical assessment of a minor.

In these circumstances an anonymised version of the decision will be uploaded onto the WRC due to the existence of special circumstances, and that the decision should be anonymised in whole.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation is required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was not represented and made his own case. The Complainant’s comprehensive submission was outlined in the ES1 Form previously referenced. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges he was discriminated against on the grounds of his Civil Status, his Gender and his Family Status when he was not (he says) consulted with in the course of a diagnostic assessment being carried out on his daughter.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent had representation at this hearing.  The Respondent gave evidence following an Affirmation.

The Respondent rejects that he has treated the Complainant less favourably on any of three discriminatory grounds. He rejects there has been any contravention of the Equal Status Act. I am satisfied that the Respondent provided a service to the public within the meaning of the Act.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have heard comprehensive evidence from both the Complainant, and the Clinical Psychologist engaged to assess his daughter.

At the outset, a number of facts of a personal nature, need to be stated. Firstly, the Complainant and his Wife are separated, and the separation process has been overseen by the Irish Family Law Courts.  Secondly, there is one child of the marriage and whilst both parents continue to be legal Guardians of the child, the Complainant confirmed that the day-to-day custody rests with the mother. It was not appropriate for me to delve too deeply into these matters in the absence of one parent. However, I was told that a Guardian Ad Litem has been appointed (to represent the child’s interests), and a Section 47 Report has been ordered by the Family Law Court to allow the Court to better understand how (through professional assessment) the child’s interests and welfare might be best served. This is not unusual in Family Law where children are too young to have a voice.

Separate to this, I am satisfied that the Respondent was contacted by the said child’s mother for the purpose of conducting a private assessment into specific learning/behavioural difficulties that the mother had observed. Although neither party was available to give evidence, I am satisfied that on foot of whatever conversation was had between the mother and the GP, the Respondent’s name came up as a person who might be able to help.

The Respondent confirmed he was contacted by the mother and asked to conduct an appropriate cognitive assessment. This was performed on the 25th of September 2021 and lasted about three hours. I note that in their preliminary conversation, the mother described the father (the Complainant herein) as “not involved”. The Respondent agreed he took this at face value and had no reason to do otherwise.

After the three-hour assessment aforesaid, the Respondent met some time later with the mother (by Zoom) to ask some questions about early years development and history. At this meeting the Respondent said that he was told about the fact that there had been a Section 47 Report requested by the Family Law Court. The Respondent indicated that he was also told that the father “was not involved” at this time.

A final report was prepared and sent in triplicate to the mother. The content of the report is unknown to me and not relevant to the within matter.

Nearly two weeks later on the 22nd and 23rd of November 2021, the Respondent was contacted by the Complainant who was objecting in the most strenuous terms to the carrying out of any assessment without his permission.

The complaint now being made is that the Respondent discriminated against the Complainant as a father and as a separated/divorced parent when he failed to contact the Complainant to seek permission to perform the assessment. The Complainant states that as a legal Guardian to the child he should have been consulted with as a matter of course and the failure to communicate with him was as a direct result of his status as a separated parent.

I have sympathy for the Complainant. He was not advised by his daughter’s mother that she was sending their daughter to be seen and assessed by the Respondent. This probably came as a shock to him and against the backdrop of the Family Law proceedings and the Section 47 report, he was understandably anxious that the child might be overwhelmed. I note that he was also anxious that his daughter might be potentially stigmatised by certain findings which might be made. I can certainly understand that he was extremely upset that a stranger, however eminent in his field, was performing an assessment without any input from him as the father and legal guardian.

However, I cannot find that the Respondent behaved in any way inappropriately. The Respondent has no reason to look behind the assertion made by the mother that the father was not involved in the rearing of the child. The Respondent had already performed his clinical assessment of the child by the time he had heard that there was a Section 47 report being completed. When I asked about this, it was pointed out to me by the Respondent that there are a myriad of reasons as to why a Section 47 would be requested and that not all of them mean that there is a significant parental involvement of both parents.  This I would have to accept is the case.

I am absolutely satisfied that the complainant is a good and involved father who was distressed that his daughter had been subjected to a process of diagnostic assessment without his knowledge. However, the Respondent did not bring about this set of circumstances. I am satisfied that the Respondent did not discriminate against the Complainant on any of the grounds cited.

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

CA-00047646-001 – The complaint fails as the Respondent did not engage in the conduct prohibited under the Act.