THE HIGH COURT
			2000 No. 6481p 
BETWEEN
LUKE DOWNEY (A MINOR) 
SUING BY HIS FATHER AND NEXT FRIEND JOHN DOWNEY
			PLAINTIFF
AND
THE MINISTER FOR EDUCATION AND SCIENCE 
IRELAND AND THE ATTORNEY GENERAL
			DEFENDANTS

JUDGMENT of Mr Justice Smyth delivered the 26th  day of  October 2000.
	This is an application for an interlocutory injunction in which the reliefs claimed are as follows:-
	(a)	Provide forthwith pending the trial of the action for free primary education for the Plaintiff suitable to his needs and/or
	(b)	Finance to enable the Plaintiff's next friend provide for free primary education suitable to his needs and
	(c)	Such further and other consequential orders and directions as to this Honourable Court may seem fit and proper including an Order reserving the costs of and incidental to this Application to the Trial Judge

	In the event only the second relief aforesaid was pursued.  
	The facts of the case are that the infant plaintiff who was born on the 24th of September, 1995 is the younger of two children born to the next friend and his wife.  At the age of 2½ to 3 years they noticed that Luke was slow to talk.  By the age of 3½ years they noticed he had language difficulty and Luke began to receive some speech therapy and thereafter went to playschool.  In February, 2000 Luke was diagnosed as autistic and on a scale of 1 to 10 on a spectrum of autism, he was a 5.  At this stage Luke was 4 years 5 months old.  The next friend avers that when told of the autism by Miss Mary Fitzgerald it came as a complete shock to him and his wife.  On the 11th March, 2000 a Mr. Allan Willis an Educational and Psychological Consultant in London met the infant plaintiff and carried out an assessment.  Mr. Willis strongly recommended a teaching programme based upon Applied Behavioural Analysis.  His opinion was, that Luke should attend a specialist provision for pupils with Asperger Syndrome or autism as a matter of priority, or that he has a home based education programme developed for him.
	The next friend also had a report from Miss Fitzgerald of 20th March, 2000.  Four letters were written to the Minister for Education on 3rd and 16th April and 1st and 10th May of the year 2000, and it is clear that an instant response was being sought to Luke's problem.  No instant solution was found and the writ issued.  Mr. Downey proceeded to take a course of action, in which he, his wife and two children flew to America, stayed there for some 5/6 weeks while Luke was receiving exclusive specialist attention at the Behavioural Intervention Association, 2354, Powell Street, Suite B, Emeryville, California (hereinafter referred to B.I.A.). The family returned to Ireland and now two tutors have been engaged for a year.  The total estimated cost of this exclusive specialist treatment or attention is of the order of £68,544.00 of which a claim is now submitted for payments to date of the order of £30,740.00.  The parents of Luke have mortgaged their home to the extent of the sum of £55,000.00.
	The background facts disclose that a report of 16th September, 1999 was sent to Miss Sinead Kelly to whom Luke had first been sent for speech therapy.  This report was prepared by a Dr. Elizabeth Lewis, Psychiatric Registrar, of the Brothers of Charity, child and family Clinic in Cork where Luke was enrolled for educational purposes.  This report (inter alia) records that:-

	"Both, particularly Mum, appeared shocked and distressed by this information."

	The information was that the Clinic catered for children with special needs.  Apparently the parents of Luke who was then 4 years old had not ever contemplated the possibility that Luke's difficulties might extend beyond his language difficulties.  Apparently the parents do everything for Luke themselves.  As of September, 1999 this 4 year old was not attending playschool.  I note most particularly that under the heading "General Behaviour":-

	"Both parents work outside the home.  Luke is minded by his maternal grandmother."

	This information is confirmed under the heading of "Family Background".  The next friend was then aged 36 and worked for an engineering firm.  Mr. Hickey S.C. for the Plaintiff informs me that the father is now self employed and who on the "budget estimate of costs" is earning money of the order of £50,000-00 per year.  
	Mrs. Downey was then aged 38 years and then worked in the Human Resources Department of a Pharmaceutical Firm.  Luke's responses to his father under "observation of Luke" are noted as the "Impression" left on Dr. Lewis which summarises Luke as having disordered language development, abnormalities of social interaction (opportunities for peer interaction being limited) restricted play activities and some ritualistic behaviours.  Dr. Lewis records:-

	"I have concerns regarding Luke's overall intellectual ability and also the possibility of autistic spectrum disorder"

	And further in the report it is noted that:-

	"Today, parents were understandably upset and expressed guilt about a number of issues including concerns that they were away from home through work too much.  That Luke was staying with granny instead of attending playschool because of convenience all round, that they were treating Luke as a baby because he was the youngest."

	Dr. Lewis concluded her report (which I note was sent to Dr. Brady, G.P. Ballinhassig - who may have been the family doctor) with a "Plan" in which she notes:- 

"6.  	As mentioned, parents had not been prepared for this type of assessment carried out today and found difficult to give definitive answers in certain areas."  

	Amongst the reports exhibited is one dated 7th February, 2000 from Dr. Noel J. Tangney, Consultant Paediatrician in which he notes that the "family history is unhelpful".  Miss Fitzgerald's report of March, 200 under the title "Perception" of Luke is as follows:-
	
	"He did not initiate social contact with me and showed no reaction to praise.  He did not seek my help for (sic) make eye contact with me.” 
	(emphasis added)

	Under the heading "Social Interaction", it is noted of Luke:-

	"Luke is an affectionate little boy towards his family and other familiar people. He has had limited exposure to other people."   
	
	And later in the report it is noted that:-

	"Luke is generally dressed and toileted by an adult."

	As of the date of the report Luke was about 4½ years of age.
	I mention these several reports so that what Mr. Willis reported and opined upon which in the papers and Counsel's submissions is most heavily relied upon are all duly taken note of.
	Initially Mrs. Downey wrote by letter dated 20th March, 2000 requesting Cork Cabas School that Luke be assessed for entry into the school and the letter also applied for a position for him there on the basis that Mr. Willis recommended the Cabas System.  Both Mr. and Mrs. Downey wrote to the Defendant on the dates earlier referred to in this Judgment. The urgency of early intervention in the case of autism was stressed and that time was of the essence so that a place in the Cabas School would be available on or before 1st September, 2000.  The Defendant replied by letter dated 12th April, 2000.  Before sending Mr. Willis' report to the Defendant an e-mail had been sent by Mr. and Mrs. Downey prior to the 14th April to B.I.A.  with a completed application form.  The e-mail from B.I.A. requested a twenty minute VHS video of Luke, 50% of which was to record parent-child interaction.
	In a letter dated 16th April, 2000 Mr. and Mrs. Downey informed the Defendant that they had started initial discussions with B.I.A. for placement and that if Luke is not given a place in the Cork Cabas School they must get Luke started on a full-time home based ABA programme.  The urgency of the position is stressed. By 1st May 2000 Mr. and Mrs. Downey wrote to the Defendant stating of Luke that he needs an Individual Educational Programme (IEP) with a one to one teacher for intensive weekly durations of 30 hours/maximum of 40 hours per week.  A general indication of costs and commitments set out in the letter which also states:-

	"If we get a place in the Cabas School for Luke it would be much better for all concerned.  Luke would be getting an appropriate education, it is full time and we both can continue to juggle our full time careers to meet our current financial commitments and our priority commitment of an appropriate education for our 2 children."

	The letter concludes:-
	"If we do not receive a written decision from you we will have no choice but to go ahead with this option" (the IEP) "and reclaim the funding through all legal channels open to us".

	The Solicitor's preliminary letter is dated 10th May and proceedings issued on 2nd June 2000.
	There are several matters in dispute in the Affidavits, in particular the options held out as available to the Plaintiff which were rejected.  The Defence to the Statement of claim of 20th of July 2000 has been delivered.  There are serious matters in contention between the parties.

The Plaintiffs submissions:-
1.	Paul O'Donoghue (A Minor) -v- The Minister for Health, The Minister for Education, Ireland and The Attorney General [1996] 2 I.R. 20 and Jamie Sinnott (A person of unsound mind not so found suing by his mother and next friend, Cathryn Sinnott)  -v- The Minister for Education, Ireland and The Attorney General (unreported: Barr, J. - 4th October 2000) established the constitutional obligation of the State to provide for free basic elementary education of all children and that such education consisted in giving each child such advice, instruction and teaching as would enable him to make the best possible use of his inherent and potential capabilities, physical, mental and moral, however limited these capacities might be.
2.	The options offered were reasonably rejected.
3.	Mr. Allan Willis' expert opinion was not disputed.
4.	The Plaintiff clearly signalled in advance the course he would take in the event of a place in the Cabas School not being available.
5.	The averments in paragraph 10 of Mr. McCann's Affidavit sworn on 5th October 2000 after the Sinnott judgment envisaged, albeit on a without prejudice basis, the possibility of agreement which would permit of interim funding for a home education programme pending the determination of test cases in November.

The Defendant's submissions:-
1.	'The very first principle of injunction law is that prima facie you do obtain injunctions to restrain actionable wrongs for which damages are a proper remedy (per Lindley L. J. in London and Blackwall Railway Company -v- Cross (1886) 31 Ch. D. 354 at 369).  This note from Bean on injunctions (7th Edition - 1996) is followed by the author's observation:-

"It is comparatively unusual for the Defendant to be able to say that damages are the only available remedy in the case and that the court does not even have a discretion to grant an injunction."

	Mr. P. Keane S.C. contended this is just such a case.  To which Mr. Hickey responded that the court can and does in appropriate cases obligate a Defendant to make payments to the Plaintiff pending the disposition of a case on plenary hearing (Patrick Courtney -v- Radio 2000 Ltd. [1997] E.L.R. 198).
2.	Mr. Downey did not give the options a fair chance.
3.	The essence of entitlement must rest on a proof thereof and whilst the O'Donoghue and Sinnott cases decided on the constitutional rights of some disadvantaged persons the entitlement to recover, if any, arises in the instant case only on a determination of the action.
4.	The Plaintiff having in May 2000 signalled a requirement for a place in the Cork CABAS School now says he has no such requirement, but may require such facility in twelve or eighteen months time.  It was not reasonable that an instant request should meet with an instant response being required of the Defendant (notwithstanding the apparent consensus that early intervention in autism is the proper response).
5.	On the authority of Fitzpatrick -v- The Commissioner of An Garda Síochána (unreported: Kelly J. 16th October 1996) the approach to be taken on the adequacy of damages as set out at pages 8-15 of the judgment should be followed.

Conclusion:
	The Plaintiff is seeking a mandatory injunction for the payment of a sum of money which can be fairly viewed as an advance on or an interim payment of the damages that he believes he will receive at the conclusion of a plenary hearing. The reasonable inference to be drawn from an order so made is that there is no liability to be tried.  A defence has been filed.  It seems to me without sight of same that the O'Donoghue and Sinnott cases which are clearly distinguishable on their facts do not necessarily conclude the liability in the instant case.  The facts as disclosed on the documents seem to raise such issues as 
(a) 	has the constitutional provision supportive of the Mother, such as to enable her to be at home to nurture the children and save her from the economic need to work been honoured 
(b) 	have the parents as the primary educators of the child discharged their duties and responsibilities concomitant to such right in the period before the diagnosis of autism and 
(c) 	the obligation on the state to provide the one to one treatment indicated in this case, which circumstances excepted, is of a standard of personal tutors redolent of earlier centuries as the privilege usually of the aristocracy 
(d) 	the duty, if any to provide and fund on six months notice or whatever period of notice a specific school and specific teaching which is determined by a parent on the opinion of one Educational Consultant.  
	The query arises as to whether the Defendant can be dictated to at short notice to provide (effectively at the expense of the rest of the community) the exact facilities a parent determines for his or her child.  These are only some of the many issues that arise on the facts.  I am aware of the mortgage raised and Mrs. Downey's going back to full time work and of the cancelled holiday to Wales and many other matters, which would clearly warrant enquiry at a trial. At the end of the case, if the Plaintiff succeeds an award of damages is what will emerge.  Matters have passed beyond those set out in the Affidavit of 7th June 2000 (particularly paragraph (11) thereof).  The Plaintiffs next friend decided to proceed to put in place an ABA programme and having done so requires the Defendant at this stage before the rights or wrongs of the issues between the parties have been resolved to finance that programme.  The Courtney case is one in which a contractual right stated to have been infringed left the complainant without a means of livelihood and the complainant was enjoined to perform duties referable to the contract if called upon as a condition of being made payments of salary pending the trail of the action.  It is clearly distinguishable from the instant case.  I have considered the balance of convenience: the status quo ante to litigation has since been unilaterally altered by the Plaintiff in the matter of monies which is what the motion is all about.  I do not conceive the jurisprudence of the Court to equate to a form of Socialist Government intent on the redistribution of wealth in society.  In law there must first be established liability before payment of damages.  The energies of the parties should be devoted to progressing the action for an early trial.  I refuse the relief sought.  Damages not an injunction are at the fulcrum of this motion.