Court dismisses gender discrimination claim against school for enrolling child without divorced father's consent.

AN CHÚIRT CHUARDA THE CIRCUIT COURT REDACTED APPROVED Record No. 2021/004838 DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN IN THE MATTER OF SECTION 28 OF THE EQUAL STATUS ACT 2000 BETWEEN:

THE BOARD OF MANAGEMENT OF A SCHOOL

APPELLANT -AND-

A FATHER RESPONDENT

Judgment of His Honour Judge John O’Connor delivered on the 25th day of April 2022

Introduction:

1. In these proceedings, the Board of Management of a School (the “Appellant”) appeals the

decision of the Workplace Relations Commission’s (the “Commission”) Adjudication Officer dated the 13th September 2021 (the “Decision”) in respect of a complaint made by a Father (the “Respondent”) alleging discrimination on the grounds of gender (the “Complaint”) contrary to the Equal Status Acts 2000-2015 (the “Equal Status Acts”).

Facts:

2. The Respondent’s Daughter (the “child”) was enrolled in the Appellant’s school by the child’s mother for the school year 2020/21. The Respondent and the child’s mother are divorced. The Respondent notified the school that he did not consent to the enrolment by the child’s mother and asserted that the Appellant’s actions in approving the enrolment of his daughter without his consent constitutes discrimination against him on the grounds of gender, contrary to the Equal Status Acts.

The Respondent’s Submissions:

3. The Respondent submits that when he became aware that the child’s mother had enrolled her as a student in the Appellant’s school, he was of the opinion that they were obliged to obtain the consent from both parents prior to enrolment and that he in fact objected to her being enrolled.

4. The Respondent requested and obtained a scanned copy of the enrolment form lodged in respect of the child. He noted on the form that the Appellant was aware that the child’s parents were divorced and aware of his contact details. He unsuccessfully appealed the

decision to enrol the child in the school and was informed that the enrolment was in order.

Decision of the Commission:

5. The Respondent brought a claim for discrimination against the Appellant. The Adjudication Officer found that the facts were sufficient to raise an inference that the Respondent was treated less favourably than the child’s mother, on the grounds of gender, in relation to the enrolment of the child in the school. Therefore, the Adjudication Officer in its decision stated the Respondent had made out a prima facie case of discrimination on the grounds of gender contrary to Sections 3(1), 3(2)(a) and 7(1) of the Equal Status Acts, which it found had not been rebutted by the Appellant. It therefore found that the Appellant was engaged in prohibited conduct. It assessed compensation in accordance with Section 27(1)(a) of the Equal Status Acts in the sum of €3000. In assessing damages, they noted in mitigation that the Respondent was fully appraised of his daughter’s well-being, that he was notified of parent-teacher meetings and had access to the Appellant’s management information system. The Commission also ordered, in accordance with Section 27(1)(b), that the Appellant should review its admission policy with a view to making any necessary amendments to ensure that the principles of equality are applied to both parents in the assessments of applications for enrolment.

The Respondent’s Submissions on the Decision:

6. The Respondent submits in both written and oral submissions that the Commission was correct to determine that he had the requisite locus standi to bring a claim under the Equal Status Acts. In simple terms he stated that he was treated less favourably than the mother of the child by the school, in the enrolment of their child in the school. In his submissions he stressed he was a joint guardian of the child and that his rights under the Irish Constitution, the European Convention of Human Rights and under the Equal Status Acts superseded provisions and/or interpretation on internal school policy. The court interprets this submission as meaning that his rights take precedence over the school policy.

7. The Respondent referred to the case of B v B [1975] IR 54, where it was held by Walsh J.:

“The main purpose of the Guardianship of Infants Act, 1964, was to give both parents of an infant equal rights in guardianship matters. In doing so, it provided a statutory expression of the rights already guaranteed by the Constitution and, in addition, defined an infant as being a person under the age of 21 years. Section 6 of the Act states the equality of the parents and recognises them as the guardians of the infant; there is nothing in any provision of the Act which purports to confer on the court or any other body the power to displace either one or both of the parents from the position of guardian or guardians.”

8. In addition, the Respondent denies the Commission failed to take account of the child’s right to education and the welfare of the child. He submits that there is no public intertest in promoting discriminating behaviour and that the Appellant’s admission and enrolment policy should be reviewed to ensure correct implementation of the principles of equality and parents’ rights to ensure restrictions on the grounds of gender, or on any other grounds which could be construed as discriminatory, do not exist in its policy of enrolment.

The Appellant’s Submissions:

9. The Appellant accepts that the child was enrolled in the school by the mother. It submits that the application for enrolment was granted by the Appellant, and this was in full compliance with the school’s enrolment policy. It acknowledges that the application form made clear that the child’s parents were divorced, that the Respondent’s details as father were set out in the application form, and that the child’s mother applied to enrol the child in the Appellant’s school as she wished to change the child’s school as they were relocating to the area local to the Appellant’s school.

10. The Appellant noted the child was offered a place in the school and continued successfully as a pupil of the school. It submits that the Respondent subsequently objected in writing to the enrolment of the child by the Appellant. He also requested that the decision to enrol the child in the Appellant’s school be rescinded pending a court order. However, they submit that the only court order produced by the Respondent to the Adjudication Officer and the Commission was a prior [another jurisdiction] Order of Divorce. They state this divorce order did not make any reference to the child’s education. Notwithstanding same, the Adjudication Officer held the Appellant should have notified the child’s mother of the Respondent’s objection and informed her that they could not proceed with the child’s enrolment until the matter had been decided by the courts.

11. The Appellant submits that this finding by the Adjudication Officer is a misinterpretation of the law. It points out that the burden of establishing a prima facie case of discrimination rests with the Respondent in terms of Sections 3 and Section 7 of the Equal Status Act 2000. It pointed out the Respondent was not a pupil of the school and therefore cannot legitimately avail of the service of the school and consequently bring a claim of discrimination against the school. It referred to the Commission’s decision of A Father v A Primary School ADJ -00025364 where the Adjudication Officer held:

“Section 2 of the Equal Status Acts defines “service” as a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes access to and use of any place. The Respondent is an educational establishment and therefore Section 7 of the Act applies.

Section 7(2) of the Act states that “An educational establishment shall not discriminate in relation to – (a) the admission or the terms or conditions of admission of a person as a student to the establishment; (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other establishment against the student.

The Complainant was not a pupil of the Respondent or a person that could legitimately avail of the services provided by the Respondent as set out in Section 7(1) of the Act. On that basis the nature of the Complainant’s case does not apply to Section 7 of the Act. I therefore do not find a prima facie case of discriminatory treatment exists in this instance.”

12. The Appellant referred to a Judgment of His Honour Judge Brian O’Callaghan delivered orally in the case of The Board of Management of a Secondary School v A Father, Southwestern Circuit Record No. 2019/00333, where the learned judge held that the father in that case failed to establish a prima facie case that there was gender discrimination in the school policy of admissions. In reaching that decision, His Honour Judge O’Callaghan inquired if the practice complained of and employed by the school bore significantly more heavily on the father because he was a man rather than a woman. He observed that if the evidence demonstrated that it did, then a prima facie case against the Appellant exists, thereby shifting the onus of proof to the Appellant. However, in that case, His Honour Judge O’Callaghan held that the Respondent did not create a prima facie case as there was no evidence furnished to the court to demonstrate that the Respondent was treated less favourably due to his gender.

13. The Appellant also referred to a decision of the Commission in A Complainant v The Board of Management of a Secondary School DEC-S2017-030. In that case the Complainant alleged he was discriminated against on gender and civil status grounds and that there was a legal requirement on the school to obtain written consent from both guardians on enrolment of his daughter. The Adjudication Officer disagreed and held there was no such requirement.

14. The Appellant submits that although the Respondent was a different gender to the child’s mother, there is no nexus between the protected ground of gender and this action. In other words, they submit that there was no discrimination on the basis that the Respondent was a man. In making that submission, they referred to wording of the legislation and the Labour Court decision in Rescon Ltd v Scanlan EDA 085 (29th February 2008), A Separated Father v A Creche DEC-S2013-003 and the High Court Judgment in Mulcahy v The Minister for Justice & Waterford Leader Partnership Ltd [2002] 13 ELR 12.

15. The Appellant also referred to the duty of the school to the child and Section 14 of the Equal Status Act.

Duty of the School to Enrol:

16. The Appellant submits that the school had a duty to enrol the student in accordance with its enrolment policy, provided the child is entitled to be enrolled under that policy. They state the child was offered a place in accordance with that policy. In this respect the school relied on the provisions of the Education Act 1998 and in particular the provisions of Sections 9 and 15 of that Act. They referenced Section 14(1) of the Equal Status Act which states that nothing in the Act shall prohibit the taking of any action that is required by or under any enactment or order of a Court.

17. They also submit that no court order was produced which determined where the child should attend school. If the school had refused to enrol the child, they submit the result would be twofold:

“(a) The immediate consequence would be the child would not be enrolled in the school until one or both parents applied to a Court for a determination. Depending on Court lists and possible appeals this could take months if not years.

(b) The daughter was entitled under the admissions policy to attend the school. If as a result of her father’s objection the school rescinded this offer, then an appeal pursuant to Section 29 of the Education Act 1998 would in all likelihood be brought by the mother which would be impossible for the school to defend.”

Jurisdiction of the Circuit Court:

18. Section 28 of the Equal Status Acts provides for an appeal to the Circuit Court against the

decision of the Workplace Relations Commission.

“(1) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission under Section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.

(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

(3) No further appeal lies, other than an appeal to the High Court on a point of law.”

Relevant Legislation:

19. Section 3(1) of the Equal Status Acts (2000-2015) states:

“For the purposes of this Act discrimination shall be taken to occur –

(a) Where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B) which –

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) Where a person who is associated with another person –

(i) Is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) Similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

20. Section 3(2) of the Equal Status Acts states:

“As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) That one is male and the other is female (the “gender ground”), …..”

21. Section 7 of the Acts specifically provides for educational establishments, stating at Section 7(2):

“An education establishment shall not discriminate in relation to –

(a) The admission or the terms or conditions of admission of a person as a student to the establishment,

(b) The access of the student to any course, facility or benefit provided by the establishment,

(c) Any other term or condition of participation in the establishment by a student, or

(d) The expulsion of a student from the establishment or any other sanction against the student.”

22. Section 61(1) of the Education Act 1998 (as amended by the Education (Admission to Schools) Act 2018) states that:

“Subject to subsection (2), the admission policy of a school shall include a statement (in this Part referred to as an ‘admission statement’) that the school shall not discriminate in its admission of a student to the school on –

(a) The gender ground of the student or the applicant in respect of the student concerned, ….”

Relevant Case Law, in addition to that put forward in Submissions:

23. In the case of Stokes v Christian Brothers High School Clonmel and Anor [2015] IESC 13, the student was refused admission to the school based on a “parental rule”. It was held by the Supreme Court, that the “parental rule” was not discriminatory against members of the travelling community. In coming to this conclusion, Clarke CJ emphasised, at paragraph 11.1, the importance of asking the proper question in relation to cases of discrimination, and that question is a question of law.

“It is important to start by emphasising that the issue of the proper question which a decision maker (be it, on the facts of this case, either the Director or a Circuit Judge) should ask, is a question of law. Therefore, if it can be shown that the

decision maker did not ask the right question, the decision cannot stand.”

24. In the Supreme Court decision of Nathan v Bailey Gibson [1998] 2 IR 162, a case involving discrimination on the grounds of gender in the workplace, the Court held at page 178:

“In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the Plaintiff's sex.”

25. In case of B.B. v A.A. [2013] IEHC 394, Hogan J held that the High Court was deemed to have jurisdiction to decide what the child’s best interests are in circumstances where the parents were in conflict over which school the child should attend. He derived this jurisdiction from the Constitution and the Guardianship of Infants Act 1964. The parents in this case did not fail in their duties towards the child but Hogan J deemed it appropriate in the circumstances to make the decision, albeit in the least intrusive way possible so not to violate the constitutional rights of the parents or the child.

Oral Evidence:

26. In addition to oral submissions, the Court heard evidence from the Principal of the School, as follows:

Counsel for the Appellant (“CA”): You are the principal of the school and the secretary of the Board of Management.

The Principal (“P”): Correct

CA: You might just briefly outline the school, how many classes there are..

P: [The School] is a senior national school with 16 classrooms, 434 pupils and 27 teaching staff.

CA: We know that an application was made in relation to this girl, is that correct?

P: That’s correct.

CA: And the application was made by her mother?

P: Correct.

CA: The application was made when?

P: January of 2020.

CA: And when was her application accepted by the school?

P: The application was accepted on the 12th of May. The school had been closed because of Covid so we were not in the office for several months.

CA: And when you accepted her application and said she has a place, when were you notified by her mother that they were accepting?

P: The same day.

CA: And what reasons were given by the mother for changing schools?

P: The child had been in school in [another school] but they now had moved into our area just up the road, literally a five-minute walk from our school and she was moving house.

CA: And on what basis was it decided to offer her a place?

P: We offered her a place due to the fact she was in our catchment area, and we had a place in [that] class, the class she was going into. CA: So in May, when you notified the mother that the place was there, she would have still been in a previous school?

P: Correct.

CA: And it was the following August, the 31st, that the child started in [that] class?

P: Correct.

CA: And when did the claimant, the child’s father, contact the school?

P: The child’s father contacted us on the 25th of May, if my memory is correct, by email.

CA: And he indicated that he felt his consent was required, isn’t that it?

P: Correct.

CA: The application that was sent into the school was only signed by the child’s mother, and it is the view of the father that if he had sent in the application form, and the Mom had said no, I don’t consent, he would have been treated differently?

P: Definitely not, no.

CA: Alright. So, is it the case that sometimes fathers fill in the application form?

P: It is indeed.

CA: And is it the case that sometimes Moms and sometimes both?

P: Yes.

CA: Alright. And where it is the case that a father only signs the form, do you do anything differently because it is the dad applying?

P: No.

CA: It would be precisely the same?

P: Exactly the same.

CA: Would it be problematic to require both parents to sign the application form?

P: In spirit, yes it would, in many cases.

CA: Why?

P: We have some one family parents, some parents who are separated, some divorced, many families with a parent deceased, so it would be difficult, yes. CA: The school was never provided with a court order by the father?

P: No.

CA: You heard mention of a Court Order?

P: We got that on the morning of the hearing of the WRC on the 3rd of September.

CA: That doesn’t mention anything about schools or education, sure it doesn’t?

P: No.

CA: If either or both parents had got a court order in relation to where this child was to be educated, what would the school have done?

P: We would have looked at the court order and not accept if it meant following the court order.

CA: When the father first got in contact with you, which you gave in evidence as the 25th of May, and you had already offered a place to the child and the place had already been accepted, if you had retracted that offer on foot of the father’s email on the 25th of May, what do you think is likely that would have happened?

P: I’m not sure but what can happen is that the parent can take what is called a Section 29 [action (sic)] against the school. We’ve had one or two over the years.

It is an appeal against us not enrolling them, if they fit the criteria.

CA: The child in this case, is she still in the school?

P: Yes.

CA: And documentation and information in relation to marks and grades etc., is that sent to both parents?

P: Both parents, yes, parent-teacher meetings as well, yes.

CA: And finally, what do you say to the allegation that has been made? The core of this case is that you have treated the father of this child in a particular way which is discriminatory because he is a man and not a woman?

P: That is not true, just not true.

Cross-examination:

The Father (“F”): Can you please explain to the Court whether you indeed recognise the right of parents (plural), to enrol their child in the school of their choice, based off my ex-wife’s communication and my communication? P: Parents can enrol their child, the mother or father or both. It makes no difference to me.

F: But the choice, to enrol their child in the school of their choice?

Judge: Now just to be clear, this is an application under the Equal Status Act to do with gender discrimination, it is not to do with the family law situation.

F: Yes, but if the policy states that the school recognises to enrol the child in the school of their choice, so was my choice respected, can you please explain?

P: The only school I have power over is my own school, [the school]. I can’t decide if they decide to go to some other school. My school choice is [the school], where I am the principal.

F: Well, it is the parents’ choice, so?

Judge: You can make a submission to the Court afterwards on that point. If there are any questions you would like to ask, they can be addressed to the witness.

F: So, however it happened, there was an application made by the mother which was objected to by the father, and the child was still enrolled in school. Have there been any other cases where there has been an objection like this?

P: No.

F: And may I ask, can you explain to the Court, what is your preference in terms of applications, should they be signed by one parent, well obviously if there is only the one parent, but where there are both parents, both guardians equal, should it be signed by two parents or is one parents’ signature enough? Which solution is better, if any?

P: I have no preference once it is signed, I have no preference.

F: Thank you.

Summary of the Applicable Law:

27. The starting point is to consider the nature of the complaint under the Equal Status Act.

There must be a connection between the alleged discrimination and the grounds of the action.

28. In assessing the complaint, it is necessary to ascertain what evidence exists to establish that the treatment received by a complainant is less favourable than the treatment someone of a different gender would have received in similar circumstances.

29. It is for the party who alleges gender discrimination to make out a prima facie case of prohibited conduct, which in this case is an allegation of gender discrimination.

30. If a prima facie case of prohibited conduct is made out, it is then for the other party to rebut the presumption of gender discrimination.

31. In considering any complaint which affects children’s rights, the best interests of the child is a primary consideration but not the only consideration. Essentially this means, the child’s interests must be considered first and other competing interests such as the rights of parents must be considered after that.

32. A child’s right to education is a very basic and important human right. All children irrespective of gender, race, age or ethnicity, have a right to education designed to achieve their greatest possible potential as children and provide the opportunity to allow them to emerge out of childhood and into adulthood with a full, active life. In doing so, education promotes equality including gender equality and human rights.

33. All parents or guardians have a common obligation to promote the education and training of their children and this involves a recognition that parents and guardians are the primary caregivers for children. This recognises that parents and guardians have common responsibilities for the upbringing and the education of children.

34. Family disputes such as issues concerning gender rights of parents should not be used by a parent to usurp the fundamental rights of a child. The Commission should not be used by a parent or a guardian in upholding their gender rights as a substitute for a court in dealing with what are essentially family law disputes regarding the education of a child.

While disputes between parents as to education are in the first instance a matter for the parties to resolve, in the absence of same it is ultimately a matter for the courts. It is a matter for the aggrieved party to initiate the appropriate court action and not the school.

35. Equality legislation needs to be interpreted first as equality legislation. However, it is not a stand-alone legislation which usurps other substantial rights particularly when those rights concern children. It must therefore be interpreted and balanced in conjunction with all relevant legislation and constitutional rights. For example, it is important to be cognisant of the Education Acts and the duty of a school to enrol a child in their school in accordance with and subject to its enrolment policy.

36. Schools should not discriminate against children or parents on the grounds of gender.

However, schools should also be afforded a practical approach of interpreting that right in their enrolment policy so as to ensure a child is not deprived of their educational rights.

This means in the absence of a court order, a school may have to take a practical approach in the interests of a child’s educational rights, provided it does not promote gender discrimination.

Applying the Law to the Facts:

37. I am satisfied on the balance of probabilities that the Respondent has not demonstrated a prima facie case that he was treated less favourably on account of his gender.

38. It is clear both from the submissions, as furnished to the court, and the oral evidence of the School Principal, as given in court, the Appellant did not operate a gender discriminatory practice in favour of female parents over male parents in the enrolment policy of the school. It is also quite apparent from the facts that the Appellant was exemplary in its frequent communications with the Respondent in regards to the child’s education. I accept that the Respondent is, in conjunction with the child’s mother, the legal guardian of the child. However, this does not create an automatic right to force a school to refuse admission of a child in the absence of one parent’s consent for a child to attend the school, simply on the grounds of the parent’s gender. As the Respondent has not made out a prima facie case on the facts, it is not necessary to consider other legal principles outlined in the judgment, such as the balancing exercise outlined in paragraph

35 of this judgment.

39. Accordingly, I therefore allow the Appellant’s appeal.