Creche assault case to be tried by jury

Claims for damages on behalf of a child allegedly assaulted and mistreated at Links Creche in Malahide, and which was the subject of a programme on RTÉ, will be heard before a judge and jury, the High Court confirmed.

Mr Justice John Hedigan refused an application by the HSE and Deirdre and Padraig Kelly, owners of two Links Creches to set aside the notice of trial before a judge and jury.

The judge said the proceedings arose from the alleged assault, battery and mistreatment occasioned to young children including the infant plaintiff, Megan Walsh Bookey, who is suing through her mother Julianne Cullen.

He said they were attending the creche Links Abington, Malahide, and most, if not all, the children who are suing the defendants attended the creche’s ‘wobbler room’.

Judge Hedigan said the Malahide creche was one of three premises which was the subject of a broadcast by the RTÉ Primetime programme on May 28, 2013.

The Breach of Trust programme featured footage recorded on RTÉ’s behalf in each of the premises investigated by an undercover reporter. The footage recorded in the Malahide creche was filmed in or around March 2013 and showed what was described in the defence delivered in the proceedings as “inappropriate” behaviour where some staff yelled, swore at, pulled, flipped or pushed, and generally mishandled the young pre-verbal children in their care.

The judge said that, as set out in the claim, the creches and their owners appear to have been alerted to the various incidents of assault, unwarranted bodily interference or restraint, mistreatment, and intimidation witnessed by the undercover reporter, some of which was covertly filmed and ultimately broadcast by RTÉ.

He said that, in addition to The Links Creche Southside Limited and The Links Creche and Montessori Limited, the creche owners were also being sued in view of the significant control exercised by them over the creche and the activities of the staff there.

Judge Hedigan told Coleman Legal Partners, solicitors representing the child, that proceedings had also commenced against the Health Service Executive in its capacity as the statutory body charged with the supervision of pre-school services.

The defendants had sought an order setting aside the notice of trial by a judge and jury and a direction transferring the proceedings to the personal injuries list for trial by a judge alone.

“The defendants claim the whole case is about the failure to properly manage and thus care for the plaintiff. The plaintiff argued that everything was based upon assault and battery without which there was no case,” the judge said.

Judge Hedigan said the allegations of assault were the case’s dominant aspects.

“The parents saw images on TV of their daughter being, they allege, shouted at, pulled, and pushed roughly,” he said. “This for a mother, in whose name these proceedings are brought, is in my view the most shocking aspect of the whole affair in which the defendants agree the plaintiff was subjected to inappropriate behaviour by their staff.”

The first and dominant claim from which the greatest part of the plaintiff’s case arose was the alleged assaults and in his judgement the right of the infant to a jury trial was preserved. The application to set aside the notice of trial before a judge and jury was refused.