THE HIGH COURT
									1995 No. 519 S.S.
IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
									PROSECUTOR
AND
CHRISTINE BEST 
									RESPONDENT

Judgment of Mr. Justice Geoghegan delivered the 31st day of July, 1998.

	This is a consultative case stated by Judge Mary O'Halloran, a Judge of the District Court sitting in Listowel, seeking pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961 the determination of a question arising in a prosecution under the School Attendance Act, 1926 as amended.  
	The offence with which the Respondent had been charged was an offence under Section 17 of the School Attendance Act, 1926.  The parts of that section relevant to this case read as follows:-
	"17. - (1)	Whenever a parent fails or neglects to cause his child to whom this Act applies to attend school in accordance with this Act and, so far as is known to the enforcing authority of the school attendance area in which the child resides, there is no reasonable excuse for such failure or neglect, such enforcing authority shall serve on such parent a warning in the prescribed form - 

			(a)	requiring him within one week after such service either to cause his child named in the warning to attend school in accordance with this Act or to give to the enforcing authority a reasonable excuse for not so doing;
			(b)	informing him that in the event of his failing to comply with the warning proceedings will be instituted against him under this Act in the District Court; and
			(c)	informing him that if within three months after such proceedings he again fails to comply with this Act further proceedings may be instituted against him without previous warning.

	       (2)		If a parent does not comply with a warning duly served on him under this section, he shall, unless he satisfies the Court that he has used all reasonable efforts to cause the child to attend school in accordance with this Act, be guilty of an offence under this section....."

In plain language, the effect of the above is that if a parent within one week after the service of the warning notice gives the gardai a reasonable excuse for not sending the child to school such parent commits no offence.  The expression "reasonable excuse" is not defined for the specific purpose of Section 17 but Section 4 of the Act which creates the obligation on a parent of every child to whom the Act applies to cause such child to attend a national or other suitable school "unless there is a reasonable excuse for not so doing" contains four instances of "reasonable excuse" for the purposes of that section.  The only one of them relevant to this case is "that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school".  Essentially, the defence in this prosecution is that the Respondent is educating her children at home and has a constitutional right so to do.  The material parts of the Case Stated read as follows:-

	"2.	At the hearing of the said complaint it was proved that the said children, William and Niall Best, did not attend at the school on the pertinent dates as grounded in the prosecution.
	3.	It was contended for the Accused on aforesaid date that the children, William and Niall Best, were being educated at home by her and she outlined the content of the said education to the Court.  She indicated that she would welcome an assessment of the children's educational position.  The case was adjourned to enable said assessment to be undertaken which assessment was before the Court on the 27th January, 1998.  
	4.	On the 27th January, 1998 Dr. Padraigh Ó Donnabhain, District Inspector, Department of Education and Science, the author of the assessment report, gave evidence in line with the said report, copy annexed hereto.
	5.	On the evidence as tendered I found as a matter of fact that the children, William and Niall Best, were not in receipt of suitable elementary education of general application viz-à-viz (sic) the primary school curriculum of this State.  
	6.	I reserved my decision on the said complaint pending the determination of this case stated.  The opinion of the High Court is respectfully sought on the following question:-

			'Whether in view of my findings of fact I am prevented in law from pronouncing a formal order of conviction in view of the fact that:-

			(a)	the Oireachtas has not to date defined in legislation what constitutes a suitable elementary education as per Section 4(2)(b) School Attendance Act, 1926; and
			(b)	in view of the relevant provisions of Article 42 of Bunreacht na hEireann as follows:-

				Article 42:
				1.	The state acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of the parents to provide, according to their means of the religious and moral, intellectual, physical and social education of their children.
				2.	Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
				3.(i)	The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.  
				   (ii)	The State shall however as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.'"

	Although it is not referred to in the case stated, it was agreed at the hearing that a purported excuse for not sending the children to school was given to the guards within the seven days from the service of the warning notice.  The warning notice was apparently served on the 21st February, 1997 and a letter dated the 26th February, 1996, but presumably intended to be 26th February, 1997, was written to Sergeant Sullivan of the Garda Siochana in the following terms:-

	"With reference to the warning given to us last Friday we would like to give the following reasons for not sending our children to school.

	For a number of years and for a number of reasons we were unhappy with the children attending Dromclough N.S.  We were dissatisfied with the school's attitude to parental involvement in the running of the school and became increasingly concerned when our youngest child, Hazel, began to fall behind and lost all interest in her lessons (we put this down to the large class number).  We became even more concerned when our second child, William, who had regularly been subjected to bouts of bullying, began to show severe stress symptoms.

	We contacted John and Theresa Murphy from Claghan, Ballyard, Tralee.  They publish a regular network/newsletter for hundreds of home educating families in Ireland.  They informed us of the following legislation.

	(1)	Article 42 of the Constitution.

		Paragraph 2.  Parents shall be free to provide this education in their homes (my italics) or in private schools or in schools recognised or established by the State.  

	(2)	School Attendance Act, 1926.

		Paragraph 4, Sub-section (2) gives as a 'reasonable excuse' for failure to send a child to school:-

		(b)	that their child is receiving suitable elementary education in some manner other than by attending a national or other suitable school.

	We made the decision then to take on the responsibility of our children's education and started to teach them at home.  We subsequently wrote to the Principal of Dromclough N.S. informing him of this decision.  This was in November 1996.  We then wrote to the Department of Education in January 1997 (we enclose a copy of the letter).

	We believe that we are complying with the School Attendance Act as we are providing our children with a good education which would compare favourably with that which they were receiving at Dromclough N.S. or would receive at any other national school.  

	Each morning (weekdays) we have 'lessons'.  These include maths and English on a daily basis, history, geography, nature, arts/crafts once or twice a week and cooking, needlework, woodwork on an irregular basis.  We hope to include Irish in their curriculum if we can arrange it and also some metal work.  Each week we go swimming and visit the library where they often work on projects.  We took them along to the children's drama group in Listowel and Hazel is taking ballet lessons again in Listowel.

	Together with any informal learning they receive through being with us all day we feel that they are getting a broad spectrum of education to satisfy their needs.  They also get opportunities to mix with other children - as well as adults - and we often have family discussions on topics such as religious beliefs, politics, current affairs, environmental issues, etc.  
	We are very pleased with the way things are working out.  The children are much happier, we feel much more involved in their education and development and, as a family, are much closer and contented.  We would, therefore, like to continue with home education for as long as we feel it is of benefit to the children.

	We would like to finish by quoting from the School Attendance/Truancy Report, April 1994.  In the summary of main recommendations made by the Working Group it states:-

		'Responsibility should be specifically placed on the parents to provide education for their children either by sending them to school or by educating them in their own homes or elsewhere.  (My italics).  We have chosen to do the latter.

		We hope that this clarifies the situation and look forward to hearing your response."

	The enclosed letter of January 1997 written to the Department of Education was brief and read as follows:-

	"We would like to inform you that we took our three children (Niall, William and Hazel Best) out of Dromclough N.S., Listowel last November, with the intention of continuing their education at home.  

	We are getting on well with this arrangement and intend to continue at least for the time being.

	We understand that we have a constitutional right to home educate our children, but would appreciate a letter acknowledging this and our notification to you of our intentions.  

	Yours faithfully."

	It is important at this stage to refer to the onus of proof.  Section 18 of the 1926 Act provides that in any prosecution for an offence under the Act the burden of proof of any of the following matters in relation to the child to whom the prosecution relates shall lie on the person prosecuted, that is to say:-

(a)	the age of the child;
(b)	that there was a reasonable excuse for the non-attendance of the child at a school in accordance with this Act on any particular day or during any particular period; and
(c)	that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school.
	
There is no doubt that in this case an excuse was offered which purported to be a reasonable excuse.  If there had been no evidence from the Inspector in the Department of Education but only evidence from the garda officer, I do not think that the learned District Judge would have been entitled to hold, having regard to the particulars given by the parents, that the education being offered was not "suitable elementary education" within the meaning of the Act.  What might be regarded as "suitable elementary education" at one period of time might not be the same as what might be considered to come within that expression at a later period.  But in my view when considering what is "suitable elementary education" the Judge must have regard to the Constitution and must therefore assume that whatever might be considered "a certain minimum education, moral, intellectual and social" within the meaning of Article 42 of the Constitution would equally be "suitable elementary education" within the meaning of the 1926 Act.  Adopting this approach I think that if the Inspector from the Department had not given evidence, the learned District Judge would have been bound to acquit.  However, with the encouragement of the Respondent, the Judge procured that an assessment be undertaken and evidence was given by a District Inspector of the Department of Education and Science whose report is annexed.  That report is a very detailed report.  The Inspector finds some aspects of the education praiseworthy and he was critical of others.  His conclusion is contained in paragraph 6 of the report and I think it helpful to quote that in full.

	"6.	CONCLUSION:

		6.1	Some provision is made for educating Niall, William and Hazel Best at home.  The provision consists mainly of a well-intentioned attempt to follow the primary school curriculum at home relying on primary school textbooks to form a basis for day to day lessons in English and mathematics as well as other areas of study.  There is no provision for studying Irish while a French lesson is provided once a week.  
		6.2	There are significant and serious shortcomings in the provision made for education at home.  Most importantly, there is insufficient structure and planning governing the work.  There appears to be a lack of adequate instruction and teaching supporting the work that is undertaken.  The lessons lack direction and challenge.  There appears to be a marked lack of progress in learning in the areas that are studied.  The opportunities these children have for challenging and stimulating learning experiences are severely curtailed.  There is no record of the time spent at instruction.  It is also apparent that these children do not have contact in an educational setting with children other than their siblings and socialisation processes that may be viewed as significant, are absent from their everyday experience.
		6.3	As regards long term prospects, it appears that these children are likely to be significantly, perhaps severely, disadvantaged in their ability to avail of further educational opportunities at either second or third level. It is possible that this may have deep significance for their future well-being."

	In the body of the report it is stated that about three hours is devoted to home teaching.  Lessons are conducted in the living room making use of a large table around which the children are seated.  There is a small blackboard available.  Each child has a set of textbooks suited to the class level they would be in if they were at school.  The mother as best she can follows the primary school curriculum and she has obtained photocopied sections of the primary school curriculum/teachers handbook.  There are however no lessons in Irish though it is hoped that some arrangement for this may be made in the future.  French is taught for one hour a week by a trained primary teacher.
	I now turn to the actual question put to this Court by the learned District Judge.  The answer to the question must be approached in the first instance by considering the relevant constitutional provision because of course it takes precedence over anything in the 1926 Act if there is a conflict.  As is already noted, Article 42 provides that the State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.  But even more precisely the article goes on to provide that:-

	"Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State."

If nothing further was stated in the article there is no doubt that the Respondent here would have a complete defence because whether the criticisms of the quality of education being given are valid or not, she is undoubtedly providing education in the home and prima facie she has a constitutional right to do so.  In those circumstances she could not possibly be guilty of a criminal offence arising out of a failure to send her child to school.  However, it is not quite as simple as that in that the following is stated in paragraph 3, sub-paragraph 2, of Article 42:-

	"The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

That is the only relevant qualification which the Constitution poses in relation to the parents right to educate the child at home.  It would seem to follow from that that an education which comes within the description of "a certain minimum education, moral, intellectual and social" must necessarily be regarded as being "a suitable elementary education" within the meaning of the 1926 Act.  
	But what is that "certain minimum education"?  It is by no means clear.  It may well be that the framers of the Constitution envisaged that the State would, in legislation or in some other form or manner, set out what it considered to be the minimum standard required by the Constitution.  If so, that has not been done and I will be elaborating on this more fully later on in the judgment.  At this point I would just observe that in my view the concept of what is "a certain minimum education, moral, intellectual and social" is not a static concept and it can vary according to public expectations.  I think that that is clear from the inclusion of the expression "in view of actual conditions".  I would also take the view that the use of the word "minimum" does not indicate some lowest common denominator.  I think that any reasonable standard of elementary education of general application which might be laid down by the State would be regarded as corresponding to the expression "a certain minimum education" used in the Constitution.
	At this stage it is important to refer to some very relevant case law.  Carberry -v- Yates, (1935) 69 I.L.T.R. 86 was a District Court appeal from a conviction by the District Court in Enniscorthy of an offence under the School Attendance Act, 1926.  The child was being educated in a private school not certified as a suitable school by the Minister and not including in its curriculum the teaching of the Irish language.  In every other respect there could have been no objection to the school.  The Circuit Court Judge, Judge Devitt, allowed the appeal expressing himself in fairly trenchant terms to the general effect that there is no need for Irish to be included in the syllabus for the education to be "suitable elementary education" within the meaning of the 1926 Act.  It appears from the interesting article that has been handed up to me by Professor Osborough entitled "Education in the Irish Law and Constitution" and contained in 1978 Jur. (n.s.) 145 that that decision caused political fury in some circles including Government circles at the time and that that was largely the historical backdrop to and context in which the abortive School Attendance Bill, 1942 was passed.  The late President Douglas Hyde referred that Bill to the former Supreme Court of Justice under Article 26 of the Constitution and the judgment in that case is the nearest authoritative guide available to the meaning of the relevant provisions in the Constitution.  In the judgment of the Court delivered by Sullivan C.J. at p. 344 the following passage appears:-

	"Speaking generally, it appears to us that these articles contemplate that normally the right and duty of educating children is vested in parents, and that it is only in exceptional cases - where the parents neglect their duty - that the State is entitled to interfere and then only to the limited extent mentioned in Article 42."

Further on in the same judgment and on the same page the former Chief Justice observed as follows:-

	"Clause 5 of Article 42 is limited to exceptional cases where the failure of the parents is due to physical or moral reasons, and may be disregarded for the purpose of this opinion.  Apart from that clause, the only right of the State to interfere in the education of children springs from Clause 3(2).  Having declared in Clause 1 that the State guarantees to respect the inalienable right and duty of parents to provide according to their means, for the education of their children, the Constitution, in Clause 2, expressly declares that parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.  In Clause 3(1) the State declares that it will not oblige parents in violation of their conscience and lawful preference to send their children to schools established or designated by the State.  So far there is nothing to indicate any right or intention on the part of the State to interfere in any way in the education of children.  It must, however, have been and clearly was contemplated that some parents would or might fail to discharge their duty and for the purpose of providing for this eventuality, Clause 3(2) was inserted.  It provides that the State shall, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.  What is the meaning and extent of this provision?  What is referred to as 'a certain minimum education' has not been defined by the Constitution and accordingly, we are of opinion that the State acting in its legislative capacity through the Oireachtas has power to define it.  It should in our opinion be defined in such a way as to effectuate the general provisions of the clause without contravening any of the other provisions of the Constitution.  Subject to these restrictions, it seems to us that the State is free to act, so long as it does not require more than 'a certain minimum education' which expression in the opinion of this Court indicates a minimum standard of elementary education of general application.

	If the standard contemplated by the section which has been referred to us exceeds these limits, we do not think it can be justified on the Constitution."

It will be noted from that passage the emphasis placed by the Court on the prima facie right of the parent to control their own children's education.  It will also be noted that the Court took the view that the State is entitled to legislate to define what is meant by "a certain minimum education".  What I infer from this is that the Court was not saying that the State was obliged to do so and in fact the State has never done so.  In the absence of such legislative or other formal definition, however, I am of opinion that a District Court Judge trying a charge under the 1926 Act and hearing evidence to the effect that a parent is in fact doing his or her best to educate a child at home in the basic essential subjects and taking into account the moral and social aspects of the education as well as the intellectual, should be very slow to find the parent guilty of an offence under the 1926 Act.  In the absence of statutory or other formal definition by the State it would be wrong in my view for the District Judge to go into fine details of teaching methods etc. with the result that different District Judges throughout the country might form different views and no parent trying to educate his or her child at home would ever have any security as to whether he or she would have a reasonable excuse or not in the event of a warning notice being served.  Such a regime can hardly be viewed as properly to vindicate the prima facie constitutional right of the parent to educate his or her children at home.  There is no vindication of that right if there is gross uncertainty.
	On the particular facts of this case I am of opinion that the learned District Judge would not be entitled to form a view beyond reasonable doubt that a suitable elementary education was not being provided, having regard to the provisions of Article 42 of the Constitution.  I would therefore answer the question posed in that form.
	There is just one matter which I should add.  It is obviously implicit in the view which I have taken that I agree with the late Judge Devitt that the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, is not essential to comply with the constitutional minimum.  Indeed as has been pointed out in the articles which have been submitted to me, it was quite common in the past and for all I know it may still be, for children in the Inishowen peninsula in Donegal to be educated across the border in Northern Ireland in schools where no Irish might be taught.  Likewise it is well known that there have always been parents in Ireland (albeit a very small number) who have sent their children to preparatory schools in England where again obviously no Irish would be taught.  It would seem to me that what was contemplated by the Constitution as a minimum education would be the basic skills in reading, writing, arithmetic, such reading and writing to be in the vernacular and such other basic knowledge as might be universally taught.  Even if some educationalists might believe that there should be some teaching of another language before the completion of primary education, the Respondent in this case has arranged for some limited teaching of French.  Obviously if I am wrong in the view that Irish is not essential then there would be ample evidence before the District Judge to enable her to convict but for the reasons indicated I have held otherwise.