A Roma family whose two year old blonde son was removed by gardai in what their lawyer described as a case of “hysterical" and “overzealous” policing has secured €60,000 damages under a settlement of their legal action.
Mr Justice Paul McDermott noted, notwithstanding the very difficult circumstances and undoubted trauma for the child, a medical report suggested he had not suffered personal injuries as a result of his experience.
The judge said he would approve the €60,000 sum, plus High Court costs, as appropriate for the now four year old boy, who as in court with his parents today.
He also directed a small payment out now to meet the costs of a computer for the child, who, the judge was told, likes playing games.
The child was removed from his home in Athlone in October 2013 after members of the public reported concerns he might not be the child of his parents. He was returned to their care the following day.
The parents sued the Minister for Justice, the Garda Commissioner and State claiming damages, including aggravated damages, on grounds including alleged negligence, false imprisonment and infliction of emotional harm.
Their lawyer Peter Bland SC said the boy and another child, a seven year old blonde Roma girl, were both removed by gardai from their homes in Athlone and Tallaght following “brief hysteria” across Europe when a blonde child, “Maria”, was found in a Roma camp in Greece
The removal of this boy under the Child Care Act 1991 was unwarranted and the Children’s Ombudsman, in an excellent report, later concluded it amounted to “ethnic profiling”, Mr Bland said. The family also had reason to believe gardai leaked matters to the media.
The Government had apologised over the matter, the court heard.
Mr Bland said it was an unusual case involving an “extremely vexed” cause of action which involved imposing a duty of care on gardai in relation to actions under the Child Care Act.
His case would have been that it was fair and reasonable to impose such a duty on gardai not to act in an over zealous way. The defence to that would argue, when gardai considered there was a threat to a child, they should not have to worry they might be sued. Such issues had yet to be decided in Irish law and he could not say he would win should the case proceed.
The high water mark of his case, had it proceeded, would be the Ombudsman’s report which concluded there was no well-founded suspicion or immediate emergency justifying the actions of the gardai.
In his ruling approving the €60,000 award, the judge noted counsel's opinion relating to the difficulties of establishing a common law duty of care on gardai in child care matters. He also noted there was no tangible, only circumstantial, evidence to support the view gardai leaked matters to the media.
In all the circumstances, including a medical report that the child had not suffered actual personal injuries while he undoubtedly found the matter upsetting, the judge said he considered €60,000 was an appropriate settlement.
The Ombudsman's report on the matter found the Garda actions involved “ethnic profiling” as defined by the European Commission against Racism and Intolerance.
The boy was removed under Section 12 of the 1991 Act, which allows for a child’s removal without a prior court order where it is considered there is an immediate and serious risk to a child’s health and welfare. He was placed in the custody of the HSE and later returned to his parents. DNA tests established he was their child.
In her report of July 2014, then Children’s Ombudsman Emily Logan concluded the readiness to believe the boy, referred to as Child A, might have been abducted exceeded the evidence available and was tied inextricably to the fact his family was Roma.
Ms Logan said she recognised the gardai in question honestly believed they were acting in the best interests both of the boy and of another blonde Roma girl also removed from her family in Tallaght around the same time.
The tip-offs from the public that triggered the Garda investigations and actions were based on an erroneous view of the case of “Maria” in Europe, then making international headlines. The Garda actions were also based on an explicitly prejudiced view of the Roma community, the Ombudsman said.
In the boy’s case, whatever doubts the gardai had should have been decisively put to rest when his father told them the child had albinism, she added.