A crèche owner has been cleared of a series childcare regulation breaches after a judge rule that it would be excessively harsh to record a conviction against her over her failing to meet the guideline requirements.
Hazel O'Mahony, owner of Tiny Tots crèche, Killeagh Gardens, Killeagh Co Cork had denied the eight breaches of the Childcare (Pre School Services) Regulations 2006 pursuant to the Child Care Act 1991 at the crèche during an inspection on November 22nd 2012.
Judge John O’Neill dismissed seven of the eight charges against Ms O’Mahony, saying the guidelines were general rather than specific and open to interpretation and he believed common sense and flexibility should be used when applying the guidelines.
He said the visit by HSE personnel, Lorraine Potter and Eleanor Buckley had caused upset to Ms O'Mahony and her staff but they should realise that the HSE had a responsibility to ensure crèches met the standards and should not have been upset at HSE staff doing their job.
However he pointed out that the HSE staff had not produced any photographic evidence from their inspection to support their case. He also noted that he had no evidence of complaint from any parent whose child was attending Tiny Tots.
He accepted Tiny Tots was short a staff member on the day in question to look after the number of children present in line with the guidelines after a staff member went home sick. However he believed there were a sufficient number of competent adults present to look after the children.
He dismissed that charge as well as charges relating to dust on mattresses, a stain on one mattress, broken toys, the failure to put a food container in the fridge and allowing a container of Milton fluid to be on a table in a nursery area accessible to children.
Judge O’Neill said the best way he could categorise those breaches of the guidelines was by comparing them to someone summonsed for doing 51kph in a 50kph and in 20 years on the bench, he had not ever seen anyone convicted for that offence.
“We are living in an imperfect world and we have to apply common sense and flexibility ... I think it would be disproportionate to apply sanctions and record convictions for such occurrences,” said Judge O’Neill before dismissing seven of the eight breaches.
Turning to the issue of Ms O’Mahony having insurance for just 35 children at a time when the number of children in the crèche went up to 37, Judge O’Neill said that he was going to convict her of that breach of the regulations.
However following a submission from Ms O'Mahony's solicitor, Frank Buttimer, that it was a technical breach of the regulations, Judge O'Neill agreed to apply the probation act in respect of that offence if Ms O'Mahony donated € 750 to the St Vincent de Paul by December 19th.
Judge O’Neill later fined Ms O’Mahony € 750 after he convicted her of failing to allow authorised HSE personnel on to her premises on May 21st 2013 just three weeks before the offences arising from the November 22nd 2012 inspection were due to be heard in court.
