EQUAL STATUS ACTS 2000-2011
Mr Tommy McLarnon
Tusla, the Child and Family Agency (represented by Arthur Cox Solicitors)
File Reference: et-149929-es-14
Date of Issue: 15th December 2015
1.1. The case concerns a claim by Mr Tommy McLarnon, that Tusla, the Child and Family Agency discriminated against him on the ground of gender contrary to Section 3(2)(a) of the Equal Status Acts 2000 to 2011.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 23 October 2014. A submission was received from the complainant on 13 May 2015. A submission was received from the respondent on 8 July 2015. On 5 November 2015, in accordance with his powers under S. 25 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 11 December 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that the respondent insufficiently investigated family difficulties which, according to the complainant, originated with his wife, and that the respondent, in the course of family law proceedings, made a recommendation on childcare arrangements which the complainant considers detrimental to the welfare of his children. He submits that if he had been a woman and his wife a man, the respondent would have investigated the matter differently and much more comprehensively. He states that he regards this as discrimination on the ground of gender.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies that it discriminated against the complainant in any way. In its written submission, it provides some detail on how the situation in the family looked to the social worker assigned to the case. Specifically on the child care arrangements, it submits that these recommendations were made after interviewing the children about their preferences.
4. Conclusions of the Equality Officer
4.1. After reading the parties’ submissions, and before the hearing of the complaint, a concern arose for me that the Tribunal might have no jurisdiction in the matter pursuant to the provisions of S. 14(1)(a)(i) of the Equal Status Acts, which read:
Nothing in this Act shall be construed as prohibiting –
(a) the taking of any action that is required by or under
(i) any enactment or order of a court
4.2. It seemed to me that the respondent, given that it is a statutory agency, may have been acting pursuant to statutory obligations and I asked the respondent to adduce relevant evidence at the hearing.
4.3. In the course of the hearing, the parties duly clarified that while the respondent had been involved in the family situation since before the legal proceedings arose, at the request of the maternal grandparents, the respondent did so pursuant to its statutory obligations under S. 3 of the Childcare Act, 1991.
4.4. I also explained to the parties that the Commission has no powers to adjudicate on anything which arises in the course of proceedings before another court, in this case, the Family Court, as this would be a violation of judicial privilege.
4.5. Accordingly, I am satisfied that prior to the instigation of the Family Law proceedings, which, according to the parties, are still ongoing, the respondent acted in accordance with a statutory obligation, and that in terms of both situations, the provisions of S. 14(1)(a)(i) of the Acts, in addition to the common law principle of judicial privilege, mean that I have no jurisdiction to investigate the matter.
4.6. I therefore find that the within complaint is misconceived. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the within complaint is misconceived pursuant to the provisions of S. 22 of the Acts.
15 December 2015