Mr Justice Paul McDermott noted that, 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.
An opinion from the boy’s senior counsel concerning his claim had noted there could be difficulties proving gardaí have a duty of care in relation to “overzealous” policing in childcare matters, the judge noted. The opinion also expressed the view that it was likely to be argued any such duty could have a “chilling effect”.
In all the circumstances, the judge said he would approve the €60,000 settlement offer, plus High Court costs, for the now four-year-old, who was in court with his parents.
On the application of Peter Bland SC, for the boy, 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 computer games.
The boy 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 next day.
The parents later 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.
Mr Bland 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 respectively 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 that it was an unusual case involving an “extremely vexed” cause of action which involved imposing a duty of care on gardaí 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 overzealous 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, counsel said.
The high water mark of his case would be the Ombudsman’s report, which concluded there was no well-founded suspicion or immediate emergency justifying the actions of the gardaí, he said.
In his ruling, the judge noted counsel’s opinion relating to the difficulties of establishing a common law duty of care on gardaí in child care matters. He also noted there was no tangible, only circumstantial, evidence to support the view gardaí leaked matters to the media.