An Athlone-based Roma family whose two-year-old blond son was removed by gardaí, 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 was in court with his parents on Monday.
He also directed a small payment now to meet the costs of a computer for the child, whom, 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 gardaí 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 gardaí 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 gardaí not to act in an over-zealous way.
The defence to that would argue, when gardaí 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 gardaí.
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 gardaí in childcare matters. He also noted there was no tangible, only circumstantial, evidence to support the view gardaí leaked matters to the media.
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.