High Court of Ireland Decisions

1. This is a Judicial Review application in the name of a child. The Applicant seeks a number of reliefs as follows:-

2. The Applicant applies through his mother, Elizabeth Comerford, as next friend.

3. The Applicant, Stuart Comerford, was born on 28th January, 1986 and is now approaching 11 years of age. He has two older brothers, Jason, aged 15 and Stephen, aged 13. He has a younger sister, Stacey, aged 8 and a younger brother, Andrew, aged 3. The Applicant's father is an unemployed builder. The family at the time of the issue of the present proceedings resided at 86 Rutland Grove, Crumlin, in the City of Dublin.

4. This is a family which has had many problems, largely stemming from the parents' over-reliance on alcohol and consequent lack of proper supervision of the children. The family have been known to the Eastern Health Board since at least 1988 and there have been many interventions by social workers, public health nurses and other professionals. These interventions seemed to be of little or no effect as the parents were either unwilling or unable to cooperate in such a way as would assist their children. The daughter, Stacey, appeared to be particularly rejected and neglected and on quite a number of occasions was found by Gardai and others wandering far from home and hungry. She also developed highly sexualised behaviour. In July 1995, with the agreement of her parents, she was placed by the Eastern Health Board (the Notice Party) in Bartres Children's Home. She has been there since that date and is doing well.

5. It is neither necessary nor desirable in this judgment to recite the details of all the difficulties suffered by the unfortunate children of this family. They are set out in full detail in the lengthy social work report provided for the Court by the Eastern Health Board.

6. At the opening of these proceedings I was informed that both the father and the mother had left this jurisdiction by early September 1996. It appears that their marriage has broken up and apparently there are bench warrants outstanding for both of them. While the mother has returned to Ireland once since September, she has refused to give the personnel of the Eastern Health Board any form of forwarding address. All the children were left behind in Ireland. On 9th September, 1996 the Eastern Health Board obtained Interim Care Orders pursuant to the Child Care Act, 1991 in respect of all the children and care proceedings are in being before the District Court. Accordingly, the Applicant, Stuart Comerford, is now in the care of the Eastern Health Board. I appreciate very much the careful and detailed social work report on the family which has been provided for the Court by the Eastern Health Board. This report gives a full family history and background against which the Court can look at the particular difficulties of the Applicant, Stuart Comerford.

7. In common with his siblings, Stuart has been involved in road traffic and other accidents. According to his mother he developed normally apart from suffering from asthma until he was aged 3. At age 3 he was involved in a road traffic accident and suffered a fractured skull for which he was treated in Beaumont Hospital. In her Affidavit his mother states that from then on his behaviour became very difficult - over-active, aggressive and stubborn. She states that he would wander away from home and be gone for several hours. However, given the history of all the children in the family, this habit of wandering off may be due more to neglect and lack of supervision by the parents (due to their abuse of alcohol) than to any innate disorder in the child, although the mother attributes all Stuart's difficulties to his head injury in the road traffic accident.

8. At the age of 6 he was involved in a further road traffic accident and fractured his femur. In 1994 he fell off a balcony and fractured both mandibles.

9. As far as education is concerned, Stuart first attended the Marist National School in Crumlin. Even at this stage his behaviour was difficult. He was transferred to Scoil Iosagáin in 1993 but his difficulties, if anything, increased. The situation in Scoil Iosagáin is well described in the school report of 20th November, 1995 given by the Principal, Brother Dundon. It is worth quoting in full:-

10. During 1995 Sarah O'Connor, School Attendance Officer, became involved with the Comerford family on account of Stuart's frequent absences from school. She first visited the family during March/April 1995 but received little cooperation. She visited again on three occasions in October 1995 but there was no one at home. On 16th October, 1995 she attended an Eastern Health Board case conference on the Comerford family. At the case conference it was agreed that an assessment of Stuart would be necessary in order to determine the best type of educational provision to meet his needs. Difficulties had arisen because there would be a considerable delay in getting an assessment. Ms O'Connor agreed to initiate legal proceedings under the School Attendance Act, 1926 in order to facilitate a speedy assessment. On 20th October, 1995 she did a home visit and was met by a neighbour who informed her that none of the family were at home. She did another home visit on 23rd October, 1995 and issued a warning to the parents under the School Attendance Act. It appears that the parents were in agreement to Stuart undergoing assessment. On 7th November, 1995 a summons was issued under the School Attendance Act, 1926. On 29th November, 1995 the case was heard in the Children's Court. Ms O'Connor applied under Section 17(4)(a) of the 1926 Act for a remand to St. Michael's Assessment Centre for a three week assessment placement. This was agreed and the case was adjourned until 20th December, 1995.

11. During December 1995 a three week assessment was carried out at St. Michael's Assessment Centre. Very full reports from this assessment were made available to this Court. Stuart's classroom behaviour and educational status are summarised in the report of the Coordinator of Assessments, Mr Danny Lynch as follows:-

12. The Applicant was also interviewed and assessed by Dr. Jerry O'Neill, Consultant Psychiatrist. Dr. O'Neill also interviewed Mrs Comerford, the Applicant's mother. He states in his report

13. Dr. O'Neill and the Assessment Centre made a number of recommendations for placements for the Applicant but none of them proved to be possible despite the efforts of Ms O'Connor and officials of the Eastern Health Board. The school attendance proceedings were adjourned from time to time by the District Court but despite all the efforts of Ms O'Connor, the School Attendance Officer, no solution could be found. Eventually in February 1996 she arranged for individual tuition for Stuart. Even in this situation Stuart often failed to attend his classes. At the beginning of May 1996 the present Judicial Review proceedings were put in train.

14. By the time the proceedings came on for hearing before me both parents had left the jurisdiction and all the children were in the care of the Eastern Health Board. An up-to-date report by Denise Gorey, Social Worker, was provided by the Eastern Health Board. Stuart had come into the care of the Eastern Health Board on 9th September, 1996 on an Interim Care Order. The mother had refused to give a contact address. Stuart was tried in a number of foster placements but all failed on account of his behavioural problems. Two school placements appear also to have failed.

15. Both Stuart and his brother, Stephen, who has similar problems, have now been allocated long term care placements in Goldenbridge, which is a residential home under the aegis of the Eastern Health Board, and at the time of hearing plans were being made to provide suitable education within that framework. In an Affidavit sworn on 24th October, 1996 Mr. Ruairi Ó Cillín, a District Inspector of Schools, states on behalf of the Department of Education that once Stuart has settled in his placement in Goldenbridge, suitable and appropriate education will be provided for him.

16. Submissions on the law governing the Applicant's case were made to me firstly by Mr. Durcan, Senior Counsel for the Applicant. Article 42 of Bunreacht na hÉireann deals with education as follows:-

17. Article 40.3.1 provides that

18. The question of the specific constitutional right of the child to primary education was fully considered in Crowley v. Ireland [1980] I.R. 102. This case arose from the I.N.T.O. strike of teachers in the national schools in the parish of Drimoleague, Co. Cork. It is not necessary here to go into the historical background of the case. During the prolonged strike, the Department of Education provided buses to bring the children of Drimoleague to national schools outside the area. The children, who were plaintiffs in the case suing through their parents, sought an order against the Minister for Education directing the provision of free primary education within the parish of Drimoleague together with other reliefs. The Supreme Court held that the provisions of Article 42.4 of the Constitution conferred on the plaintiffs a right to receive primary education but that the relevant obligation of the State under that section was to " provide fo r" such education and not to supply it. The absence of free primary education in an area for a considerable period of time furnished prima facie evidence that the State was not performing its duty to provide for that education and imposed on the State the onus of rebutting that evidence. However, a majority of the Supreme Court held that the total evidence established that the State had not failed to provide for free primary education for the benefit of the plaintiffs in that they had been brought to schools outside the area.

19. Mr. Durcan, on behalf of the Applicant, drew attention to certain passages in the judgment of the Supreme Court and in particular that of the then Chief Justice, Mr. Justice O'Higgins at page 121 and 122/3 of the report as follows:-

20. At page 126 of the report the learned Mr. Justice Kenny in his judgment distinguishes very clearly between the State's duty to " provide for " free education and the State actually providing the education itself. However, I would accept that the tenor of the Supreme Court judgments is that the child has a right to free primary education and that the State must " provide for " that education. I would also accept Mr. Durcan's contention that the right to free primary education extends to every child, although the education provided must vary in accordance with the child's abilities and needs.

21. This whole question was discussed fully and at length by the learned O'Hanlon J. in his judgment in the case of O'Donoghue v. The Minister for Education (unreported High Court 27th May, 1993). It should be noted that this case is under appeal and will, it appears, be heard by the Supreme Court in February 1997. After a comprehensive survey of the authorities, both educational, religious and legal, in this and other jurisdictions, the learned O'Hanlon J. states at page 76 of his judgment:-

22. A situation which has some similarities to the instant case was considered by the learned Geoghegan J. in the case of F.M. v. Minister for Education and Others [1995] 1 I.R. 409. In this case the applicant was a 12 year old child whose father was unknown and whose mother, now dead, had had no contact with him since an early age. After a period of time with foster parents an "out of control" order had been obtained by the Eastern Health Board which had subsequently provided various types of accommodation for him. He was ultimately diagnosed as suffering from hyperkinetic conduct disorder by a consultant psychiatrist who recommended a period of time in a secure unit which could contain him safely while confronting his behaviour. The learned Mr. Justice Geoghegan held that the child had a constitutional right to be fed and to live, to be reared and educated and to have the opportunity of working and realising his or her full potential and dignity as a human being and that those rights must be protected and vindicated by the State pursuant to Article 40 section 3 of the Constitution. He also held that accordingly where there was a child with very special needs which could not be provided by the parents or the guardian, there was a constitutional obligation on the State under Article 42 section 5 to cater for those needs in order to vindicate the constitutional rights of the child. There might conceivably be very exceptional circumstances where there was some quite exceptional need of the child which the State could not be expected, even under the Constitution, to provide but the provision of such accommodation, services and arrangements as were necessary to meet the requirements of the applicant in that case was not so impractical or so prohibitively expensive as to come within any notional limitation on the State's constitutional obligations. The judgment of the learned Geoghegan J. has been followed in its principles in a number of subsequent cases and I accept the principles set out in that case as I do the principles set out by the learned O'Hanlon J. in O'Donoghue's case.

23. Mr. McEnroy, on behalf of the Eastern Health Board, correctly stressed that the Eastern Health Board is a creature of statute and can only exercise the powers delimited for it by statute. The statute dealing with the duties of health boards in regard to children is the Child Care Act, 1991. The general function is set out at Section 3(1):-

24. The remainder of the section and other sections of Part II of the Act set out in detail the duties of health boards in providing for children and include the accommodation of homeless children and the provision of an adoption service. Under the Health Acts the health boards have, of course, also a duty to provide general health services for children in the same way as they do for the rest of the population. However, I would accept, as submitted by Mr. McEnroy, that under the legislation health boards have no specific duty either to provide education or to provide for education of children.

25. Article 42.5 of the Constitution provides that

26. On the considerable evidence before me, I consider that the Notice Party, the Eastern Health Board, has fully carried out its constitutional duty to the Applicant under Article 42.5 of the Constitution. The only question that might be raised in regard to the conduct of the Eastern Health Board is that, given the history of this case, the Board might have moved earlier to take the Applicant and the other children of this family into care given the level of neglect and lack of supervision by the parents which has caused immense problems to all of the children. However, in approaching this situation the Health Board had to bear in mind the extremely strong rights given to parents and the family in the Constitution and the comparative lack of express constitutional rights for the child as against the parents. The Health Board also had to bear in mind that Section 3(2) of the Child Care Act, 1991 states that

27. The Eastern Health Board is merely a Notice Party to this case. I feel that whatever may have been its weaknesses in providing a proper placement for the Applicant in the early part of 1996 after he had been diagnosed as suffering from attention deficit disorder, this situation has now been remedied by the provision of a long term secure placement in Goldenbridge.

28. Mr. Ó Caoimh, for the Respondents, submitted that in providing the education which it had provided for the Applicant up to and including individual tuition, the Department of Education had fulfilled its constitutional duty to the Applicant. He submitted that in the present circumstances the Applicant was being settled at Goldenbridge and that the Department of Education was in the course of planning and providing suitable education for him there. It would therefore be inappropriate to make the Orders sought in the pleadings.

29. These cases raise the issue of the constitutional rights of citizens, in particular children, and the concomitant constitutional duties of the State. As I have said, there have been a number of these cases in the past two years in each of which an individual child has, by and large, had a constitutional claim upheld against the State. The result has been that a decision of the Court has had considerable funding implications for one or other arm of the apparatus of the State. The matter of cost was referred to briefly by Geoghegan J. in the case of F.M. v. Minister for Education and Others .

30. During his submissions to the Court in this case, Mr. McEnroy, on behalf of the Eastern Health Board, invited the Court to consider and deal with the issue of limitation of expenditure in these cases, or the balancing of expenditure as between different priorities by the organs of the State. I do not propose to enter upon the extremely difficult area of making such a ruling. In principle I consider that for the Court to embark on such an exercise would be a wrongful trespass by the Court into the prerogative of the Executive power. It is for the Executive to make its own decisions in regard to the raising of finance and the prioritising of expenditure.

31. This, however, does not mean that I am unconscious of the difficult budgetary implications of these cases. It may well be, as I think it is both in this case and in another case which I heard immediately subsequent to this case (but which settled), that the Applicant's individual claim will have the beneficial result that the Department of Education or other State body will plan and provide for the education of a particular group of children - in this case children suffering from attention deficit disorder. However, in some cases costly provision will have to be made for an individual child with no particular resultant benefit to any other children. State funds are not unlimited and money expended for one purpose, however worthy, may result in a shortage of funds for some equally, if not more, worthy purpose in the field of child care, child protection or education.

32. As I have said, it is not for the Court to trespass on the function of the Executive in the raising and expenditure of monies, but I think it is only reasonable for the Court, in considering cases of this type, at least to bear in mind the possible consequences of any Orders which are made.

33. In the present case the Applicant seeks a declaration that the First and Second named Respondents have deprived the Applicant of constitutional rights under Articles 40 and 42 of the Constitution in failing to provide for the education of the Applicant and in discriminating against him as compared with other children, together with Orders of Mandamus and Injunctions. There is no doubt on the evidence that the Applicant has not been provided with education of a type from which he could truly benefit. Has this been due to the failure of the Respondents to fulfil their constitutional duty to him?

34. On the facts this case is in stark contrast to the case (to which I have already referred) which came on for hearing immediately after it. In that case, where the child suffered from a form of autism, a devoted mother had dedicated her life to both seeking and providing a suitable education for her son. In the present case I have no doubt that the parents, in their own way, loved the Applicant (and he seems to have been particularly close to his mother). However, the parents' own behaviour, and in particular their reluctance to accept advice or to cooperate with those who sought to assist them, culminating in their total abandonment of all their children, must mean that the educational deprivation of the Applicant was due to the actions of his parents as well as to any default on the part of the Respondents. Article 42 section 4 of the Constitution imposes a duty on the State to provide for free primary education but Article 42 sections 1, 2 and 3 emphasise much more strongly the rights of the parents in the education of their children. These rights, too, carry concomitant duties. Bearing this in mind, the education of the Applicant was, by and large, under the control of his parents and in her interview with Dr. Jerry O'Neill, the mother expressed the wish that Stuart should return to Scoil Iosagáin. However, once School Attendance Act proceedings in the District Court were initiated, the Respondents had intervened in the situation. In accordance with the direction of the District Judge, the Applicant was fully assessed in December 1995. At that stage Dr. Jerry O'Neill, Consultant Psychiatrist, diagnosed him as suffering from attention deficit disorder and made clear recommendations as to the type of education he needed. Dr. O'Neill states in his report:-

35. However, from then until the date of hearing no proper effort was made to fulfil Dr. O'Neill's recommendation. I accept the submission of Mr. Durcan that from December 1995 onwards, the Respondents failed in their constitutional duty to provide for a suitable primary education for the Applicant. I will therefore make the declaration sought at paragraph (d)(i) of the Statement of the Applicant.

36. With regard to the other reliefs sought, I am aware that the Applicant has now been provided by the Notice Party with a long term placement in Goldenbridge. Mr Ó Cillín avers in his Affidavit that suitable education will be provided and I feel that a reasonable time should be allowed to the First named Respondent to put these arrangements in train and to monitor the Applicant's progress to make sure that the educational arrangements are indeed suitable for him. In a case like this it should normally be sufficient to grant declaratory relief in the expectation that the institutions of the State will respond by taking the appropriate actions to vindicate the constitutional rights of the Applicant. I therefore propose to make no further Order at this point but to grant to both sides liberty to apply should any necessity to do so arise. I will also list the matter for mention before me on the 15th July, 1997 so that a report on the educational progress of the Applicant can be made to the Court at that stage.