Tommy Conroy v Board of Management of Gorey Community School

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 23 January 2015
• Neutral Citation: [2015] IEHC 103
• Court: High Court
• Date: 23 January 2015

[2015] IEHC 103

THE HIGH COURT

[No. 40 J.R./2014]

Conroy v Board of Management of Gorey Community School

JUDICIAL REVIEW

BETWEEN

TOMMY CONROY

APPLICANT

AND

BOARD OF MANAGEMENT OF GOREY COMMUNITY SCHOOL

RESPONDENT

School – Board of Management – Chaplin – Trust – Trustees – Property – Judicial Review – Order of Certiorari - Ancillary Injunctive Relief – Unfair Procedures – Unreasonableness – Risk Assessments

Facts: In this case by order made on the 20th January, 2014 the applicant priest was granted leave to seek by way of judicial review an order of certiorari quashing a decision made by the Board of Management on the 22nd October, 2013 insofar as the decision purported to: (1) Remove the applicant from his position as chaplain of the school; (2) Assert that the applicant was not chaplain of the school; (3) Forbid the applicant from having contact with students of the school outside school hours without the consent of the school”s principal; (4) Forbid the applicant from having a lead role in any school group activity and from participating in any trips with pupils; and (5) Required the applicant to see his personal counsellor on a regular basis. The applicant also obtained leave to seek by way of judicial review a declaration that the applicant was and remained chaplain of the school and ancillary injunctive relief prohibiting the respondent from removing the applicant as chaplain. An allegation had been made by a former pupil against the applicant through her parents that the applicant had had a sexual relationship with her. The applicant denied all allegations. Following an investigation and the completion of risk assessments, the applicant sought to be restored to his duties at the school. Having secured registration with the Teaching Council, the Board wrote to him by a letter of the 22nd October, 2013 informing him that he could ‘return’ to the school as a religious education teacher subject to certain conditions and the recommendations contained in the risk assessment report that he not counsel pupils etc. The applicant asserted that by this letter the respondent had in effect removed him as chaplain at the school and the first ground of judicial review was that the applicant acted ultra vires and in breach of fair procedures in so doing. The second ground of judicial review was that the conditions imposed by the respondent were also not within the competence of the respondent and were harsh, arbitrary, unreasonable and disproportionate.

Held by Justice Baker in light of the available evidence and submissions presented that the decision to employ the applicant as a teacher of religion in the school was one with a sufficient public law element to attract review. The Court rejected the argument that the applicant was denied fair procedure in the way in which certain conditions were imposed upon him. He was well aware of the possible inclusion of these conditions either as a result of Mr McGrath”s findings in his risk assessment or as a result of the recommendations made by the Board. He had cooperated with the risk assessment. There was determined to be no denial of his rights to fair procedure or constitutional justice in the process. Justice Baker also found that the conditions imposed upon him were not harsh, arbitrary, disproportionate or irrational and were not ultra vires the Board. Consequently, the reliefs sought were refused.

1 1. The applicant is a priest ordained in the Roman Catholic Church and some 21 years ago he was nominated by the then Bishop of Ferns to act as chaplain to Gorey Community School. His role evolved over time and although it did involve the applicant in both pastoral and teaching duties in the school, he was contractually a chaplain simpliciter. A chaplain in a Roman Catholic school is not required to be an ordained priest, or to have any other ministry of religion.

2 2. The respondents are the Board of Management of the school established, as are most community schools, under the model deed of trust for community schools made between the Minister for Education and identified persons who act as the Board and others who are trustees of the school. The school buildings themselves are held by the trustees under lease from the Minister, and the State pays some or all of the building costs of the school buildings themselves.

3 3. Under the model trust the trustees hold the property on trust for the purposes of the school with the declared object of providing a comprehensive system of post primary education open to all children of the community. The model trust deed incorporates a scheme for such education and the trustees covenant to perform and execute the obligations contained in the scheme set out in the two schedules to the deed, the first such schedule being the Instrument of Management and the second schedule being the Articles of Management.

4 4. Under the Instrument of Management there is established a Board of Management which is responsible for the governance and direction of the school subject to the provisions of the two schedules. The members of the Board are those nominated by the patron, usually a religious body, two parents of children who are pupils in the school, two members who are serving teachers in the school, and the Board in total comprises 10 members as well as the principal of the school.

5 5. Under the Articles of Management the Board has a power to select and appoint teaching staff, the number of such staff to be subject to the prior approval of the Minister. The Board may also employ part-time teachers and non teaching staff. The contract of employment with teaching staff is to be in the official form supplied by the Minister. The Articles specifically provide for religious instruction to be given at the school and for the attendance of pupils thereat. A whole time or part-time teacher of religion may be appointed for that purpose, A chaplain may be appointed on the nomination of the relevant religious authority.

These proceedings

6 6. By order made on the 20 ^th January, 2014 the applicant was granted leave to seek by way of judicial review an order of certiorari quashing a decision made by the Board on the 22 ^nd October, 2013 insofar as the decision purports to:-

1 ) Remove the applicant from his position as chaplain of the school.

2 ) Assert that the applicant is not chaplain of the school.

3 ) Forbid the applicant from having contact with students of the school outside school hours without the consent of the school's principal.

4 ) Forbid the applicant from having a lead role in any school group activity and from participating in any trips with pupils.

5 ) Require the applicant to see his personal counsellor on a regular basis.

The applicant also obtained leave to seek by way of judicial review a declaration that the applicant is and remains chaplain of the school and ancillary injunctive relief prohibiting the respondent from removing the applicant as chaplain.

Background facts: complaint by former pupil

7 7. Sometime in 2011 a former pupil of the school made an allegation against the applicant through her parents that the applicant had had a sexual relationship with her in 2006 and 2007. The applicant was placed on administrative leave while this allegation was investigated by the respondent and, following the mandatory reporting to the HSE, by the HSE. The applicant has always denied and continues to deny all allegations of sexual impropriety, and ultimately the HSE determined that the complainant in question was not one within its remit, as the complainant was not under the relevant age of consent. The HSE, however, did advise the principal of the school that the allegations made by the former pupil were "very serious in nature" and in that context the Board conducted its investigation and inquiry.

8 8. The Board having determined to conduct its own investigation communicated its disciplinary complaint against the applicant by a letter of the 5 ^th September, 2012 the relevant extract from which states the following:-

"It is alleged that while in Transition Year you and the Complainant developed a close relationship which became sexual in nature during 5 ^th Year and ultimately broke down in 6 ^th Year. It was further alleged that the sexual encounters occurred in the Oratory in your office and at your house. The Complainant also indicated that whilst on the Transition Year trip to the Gambia, she and another girl slept in your bed but that nothing happened on this occasion. It has also been indicated that while on the Youth Pilgrimage to Cologne, you and the Complainant held hands and one evening you got the Complainant drunk and she woke up next morning in your bed."

A disciplinary hearing was then convened on the 11 ^th October, 2012 at which the applicant was legally represented. The complainant did not attend. The decision of the disciplinary hearing was communicated to the applicant's solicitor by a letter of the 5 ^th December, 2012 which contained a finding that "on balance the Board believes that there was no sexual impropriety on the part of your client with the Complainant."

9 9. The letter however stated that the Board did believe "that certain aspects of your client's conduct were inappropriate", although it did not set out details of those matters or how it was suggested they were inappropriate.

10 10. Following this finding the applicant was requested and did in fact undergo a risk assessment through an assessor, a qualified psychologist, one Kieran McGrath. The process took a number of months and involved an independent consultation process with the applicant following which a report was prepared by Mr McGrath at the end of February 2013. He was asked in particular to assess whether the applicant posed any risk to students at the school and his finding in his...