THE HIGH COURT
DUBLIN
 [2003]1144OP  
HC 255/04  
        
JEREMIAH CRONIN (A MINOR) SUING BY HIS MOTHER
AND NEXT FRIEND MARGARET CRONIN
					Plaintiff

THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN THE SOUTHERN HEALTH BOARD IRELAND AND THE ATTORNEY GENERAL
					Defendants

APPROVED JUDGMENT DELIVERED BY MS. JUSTICE  LAFFOY TUESDAY 6TH JULY 2004

BACKGROUND
The Plaintiff, Jerry Cronin, is a four-year-old boy and he sues for his mother and next friend, Mrs. Margaret Cronin. In June, 2002 he was diagnosed as suffering from attention deficit hyperactivity, autistic features and/or hearing deficit and speech delay by a consultant paediatrician in Cork. Subsequently, in December 2002 following assessment by the Regional Autism Spectrum Disorder Service, which is funded by the Southern Health Board and operated under the auspices of the Brothers of Charity, a disorder in the autistic spectrum was confirmed. Jerry lives with his parents in Macroom, Co.Cork.

THE PROCEEDINGS
The proceedings were initiated by a Plenary Summons which was issued on 15th October 2003 in which the Plaintiff claims various declaratory reliefs in relation to his constitutional, statutory and other legal entitlements to be provided with appropriate free primary education and also appropriate free
therapies and care. He also claims damages for breach of his constitutional rights. Significantly for present purposes he seeks a mandatory injunction pursuant to the Education Act, 1998 (the Act of 1998) directing the First Defendant, the Minister for Education and Science, to forthwith provide for free primary education, including support services appropriate, to his needs. On the same day as the summons was issued, that is to say, 15th October 2003, a Notice of Motion claiming various interlocutory reliefs was issued. The Motion came on for hearing on the 20th February, 2004.The issues between the Plaintiff and the third Defendant, Southern Health Board, were resolved by agreement. The issues between the Plaintiffs and the First Defendant were considerably narrowed and they were, in fact, narrowed down to two issues. This judgement is concerned with those issues.

THE EVIDENCE

The evidence pertinent to the issues with which the Court is concerned is contained in Affidavits sworn by the Plaintiff's mother, Mrs. Cronin, on the 10th October, 2003; 12th January, 2004; and 27th January, 2004 and in Affidavits setting out the First Defendant's position sworn by a civil servant in this department, Mr. John P. Kelly, on the 12th December, 2003; 23rd January, 2004; and 12th February, 2004.In the Affidavits there have been exhibited a number of professional assessments of Jerry by educational psychologists, which include expressions of opinion as to the manner in which Jerry's education, training and care should be progressed. I propose summarising the views of the professionals insofar as they are relevant to the issues which arise on this application.

SUMMARY OF PROFESSIONAL OPINIONS
Dr. Olive Healy has been involved with Jerry since January, 2003. She is the Director of Education at Cork CABAS School. Jerry has been on the school waiting list since January, 2003. At that time the First Defendant sanctioned ten hours home tuition for Jerry and Dr. Healy, at his mother's request, agreed to supervise a home programme for him.

In February, 2003 Dr. Healy assessed Jerry and concluded that, given that he was unlikely to be offered a place in the Cork CABAS school soon, the next best option was for Jerry to access a home based CABAS programme for ,thirty two hours per week until he should get his school placement. It was Dr. Healy's opinion that Jerry would benefit immensely from the consistent and effective behaviour management programme which a CABAS school can offer.
In April, 2003 Sally Williams, senior psychologist  with the Regional Autism Spectrum Disorder Service,  made an application to the First Defendant for an  additional ten hours per week home tutoring for  Jerry. She expressed the view that, while not ideal,  twenty hours per week home tutoring was nearer to  meeting Jerry's needs than the then current  provision. On foot of this application the First  Defendant, in May, 2003, sanctioned a further five  hours per week home tutoring for Jerry. 

In May, 2003 Jerry was assessed in London by  Mr. Allen Willis, an education and psychology  consultant who specialises in autism and  communication disorders. He diagnosed Jerry in the  moderate range of the autistic spectrum. He  summarised his views of Jerry's educational needs, as follows, in his report: 

"Jerry has significant and complex  educational needs and poor compliance  to adult direction. He requires an  intensive education programme to meet  those needs, that is autism specific  and consists of 1:1 direct teaching.  Jerry needs to have an intensive and  systematic approach such as Applied  Behavioral Analysis (ABA) as he is not  yet able to imitate other children  consistently or learn by a language  based instructions in a group or class  setting. Jerry needs to establish  compliance to adult direction as a  priority, so that he is then ready to  earn from adults and then from other  children. He has responded well to 1:1  teaching at home but the hours are insufficient at present. Research indicates that a minimum of thirty two hours per week of ABA is needed to be effective and I would recommend that Jerry receive an ABA programme of no less than this amount per week. He is currently on the  waiting list for CABAS in Cork and it is my opinion that he should be placed there and receive an interim ABA programme at home for at least thirty two hours per week until such time as he is placed at CABAS." 

The next milestone was the institution of these proceedings. In November, 2003, the First Defendant sanctioned home tuition for Jerry for twenty hours 
per week and this provision was backdated to January, 2003.

In connection with these proceedings Jerry was  assessed by Dr. Clare Mangan on behalf of the First Defendant. Dr. Mangan is an educational  psychologist. She is the Assistant Senior Education Officer with the Southern Educational and Library  Board in Northern Ireland, where she has direct responsibility for children and young people with  special education needs, including autism. 

Having assessed Jerry in his home, Dr. Mangan  furnished a comprehensive report to the First  Defendant. Dr. Mangan's opinion is that Jerry has learning difficulties that are at least in the mild  range of learning disability, bordering on the moderate learning disability range in some areas. She diagnosed Jerry as mildly autistic relative to  other children who have been given a diagnosis. She  recognised that he had special education needs  arising from his learning disability and autism and  also because of his significant expressive and  receptive language delay and problems with social  communication. The pre-school provision she  recommended was as follows. 

On the basis of her assessment she recommended that in the first instance Jerry would benefit from:

"1.	A pre-school placement for at  least three days per week. 

2.	In this context he should  access full time assistance for the  hours that he attends. 

3.	This assistant and other  pre-school staff should require  training and support from local autism  services to facilitate the delivery of  a structural, social, cognitive and  language based programme. 

The pre-school placement could  be supplemented by a home based  programme for part of the week. The  home based programme would provide  additional support in relation to key  targets and assist Jerry's parents with  the establishment of targets for  self-help and her [his?] functional activities. 

"5.	Furthermore, speech and  language therapy, which is currently  being provided at home, should continue  to be delivered in this context. The  speech and language  therapist would  also liaise with the pre-school staff  as part of an integrated language programme." 

The foregoing could be delivered until Jerry reaches compulsory school age and could also incorporate recommendations 5 to 14 and 16 to 18, inclusive, as specified in the next section of her report which set out her views on school provision. One of the recommendations is the measured use of a behavioral approach such as Applied Behavior Analysis (ABA) if deemed appropriate by his teacher. Dr. Mangan emphasised the word "measured".

In her report Dr. Mangan also addressed the following issues:

(1)	Mr. Willis's recommendation that Jerry receive  32 hours per week tuition based on ABA. She  expressed concern as to the appropriateness and  efficacy of such a lengthy and intensive programme. 

Other interventions, aside from ABA, for example, the TEACHH programme, which she opined might be more beneficial for Jerry.  In relation to school provision for Jerry, Dr. Mangan recommended the application of the TEACHH programme with particular reference to visual schedule.  It is necessary to pause here to consider the factual  context in which Dr. Mangan's recommendations have to  be considered, the most important factor being the geographic factor which Dr. Mangan recognised as  being important.     As I've stated at the outset, Jerry  lives with his family, his parents, two sisters and grandmother in Macroom.  There is considerable controversy on the Affidavits as to whether a  suitable pre;-school placement could be arranged for  Jerry within a reasonable distance of his home. It  is not possible to resolve that controversy on the  Affidavit evidence. However, the factual position is  that a pre-school placement, which his parents  considered suitable, has not been found for Jerry  apart from a limited in duration pre-school placement  at a local pre-school, Toonbridge. 

Dr. Healy commented on Dr. Mangan's recommendations and observations in a report exhibited in  Mrs. Cronin's Affidavit of 27th January, 2004. In  relation to the appropriate form of education for  Jerry, she disagreed with Dr. Mangan's choice of TEACHH and favoured ABA within a CABAS model, stating that CABAS is – 

"A system that supports optimum pedagogy through the science of individualised instruction."

In relation to Dr. Mangan's recommendations for school provision when Jerry reaches compulsory school age, she expressed the view that Jerry could access most of them at Cork CABAS School.

Finally, in a report of 4th February, 2004, Dr.  Mangan commented on Dr. Healy's observations which she interpreted as having synthesised – 

" ..the discussion into a TEACHH/ABA dichotomy".

She confirmed that her opinion was that Jerry would benefit from a range of interventions to meet his  special educational needs. As regards future  placement, which is not an issue to be dealt with in this judgement, she queried the potential "value  added" of a CABAS place over placement in a more geographically convenient autism specific class where  an appropriate programme could be planned and delivered. 

THE SPECIFIC RELIEF SOUGHT IN THIS APPLICATION

The Plaintiff seeks a mandatory injunction that the  First Defendant provide for the cost of twenty nine  hours per week one-to-one ABA tuition from  appropriately qualified staff throughout the calendar  year in his home during the Plaintiff’s pre-school  phase and also the coast of supervision of the  Plaintiffs educational programme, measured at 300  Euro per month, during the pre-school phase.  The arrangements for putting in place the Plaintiff's programme of home tuition were made by Mrs. Cronin with the assistance of Dr. Healy and others. In  effect, what the First Defendant is being asked to do  is to fund the provision of the programme. The programme is additional to the Plaintiff's limited placement in Toonbridge. 

GROUNDS ON WHICH THE PLAINTIFF BASES HIS ENTITLEMENTS 
The Plaintiff invokes the following rights in support of his claim:

(a)	His constitutional right to free primary  education appropriate to his needs as recognised by  the Supreme Court in Sinnott -v- The Minister for Education [2001] 2 IR 545 

(b)	His statutory right under the Act of 1998. In particular, reference was made to Section 6,  paragraph (g), which provides that every person concerned in the implementation of the Act should  have regard to the objects set out, including:	 

"(g)	To promote effective liaison and consultation between schools and centres for education, patrons, teachers, parents, the communities served by schools, local authorities, health boards, persons or groups of persons who have a special interest in or experience of the education of students with special educational needs and the Minister."

(c)	His rights under the European Convention on Human Rights Act, 2003 and in particular the rights derived from Article 13 (Effective Remedy) and Article 2 of the First Protocol (Right to Education).

Counsel for the Plaintiff laid particular emphasis on the observations of Hardiman, J. In Sinnott –v- Minister for Education, at page 711, pointing to the possibility of enforcement of statutory duties in  relation to the provision of education for autistic  children through court intervention. 

THE RESPONSE OF THE FIRST DEFENDANT

In broad outline the response of the First Defendant is as follows:

1.In the provision already made, the First  Defendant has fulfilled his duties to the plaintiff  both under the constitution and the Act of 1998. 

2.Regard has been had by him to the concerns  expressed by Dr. Mangan. 

3.In relation to a discrete issue which arises in  relation to the provision of home tuition during the  month of August, home tuition follows the mainstream school year with an extension into July, but not  August, to which Mrs. Cronin's response is that the  policy should be informed by the needs of the child
and not by the mainstream school year.

4.	The First Defendant is committed to continuing to fulfill his obligations to the Plaintiff and to ensuring that suitable and appropriate education is 
made available for him having regard to his needs.

5.	However, Section 5, Sub-section 4 of the Act of 1998 mandates the First Defendant in carrying out his functions under the Act to have regard, inter alia, to the resources available. Moreover, his duty under section 6, paragraph (b) of the Act is:

"To provide that as far as is practicable and having regard to the resources available, here is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people."

Counsel for the First Defendant emphasised in particular the reference in paragraph (b) to "the  resources available" and to "quality of education appropriate to meeting the needs and abilities of  those people". 

It was submitted that what is required of the  Defendant is to adopt a reasonable approach and this cannot mean that he may be enjoined to give effect to  a programme, just because it is proposed by a psychologist. 

THE TEST TO BE APPLIED IN THIS APPLICATION

This is an interlocutory application. The reliefs  sought are designed to provide for interim measures pending a full hearing. The application is grounded  on Affidavit evidence. In this case the Affidavits  have thrown up serious conflictps of evidence, not  to mention fundamental conflicts of professional  opinion. I have outlined the professional opinion at  some length for the purpose of illustrating this  point. It is not the function of the Court to  resolve such conflicts, even if it could. In  particular, the Court cannot make a judgment on the  basis of the evidence before it now as to what is in  the best interest of Jerry, which after all is what  these proceedings are all about. 

By way of comment, I would say that the Affidavits on both sides display a level of contention and acrimony which I did not find helpful in determining the  issues before the Court. Moreover, Mrs. Cronin  raised in one of her Affidavits the outcome of other proceedings in this Court dealing with the type of  issues raised in this case and also provision made by  the First Defendant for other children with special  needs. The response on behalf of the First Defendant  was that the "High Court Agreements" referred to are "confidential in nature". I say by way of comment  that it is difficult for the Court to apply the law  fairly, consistently, and on the basis of equality, if it is not given the full picture.

The only authority directly in point to which the Court has been referred is Nagle (a minor) -v- South  Western Area Health Board and The Minister for Education and Others, in which judgement was delivered by Herbert, J. on the 30th October, 2001,  post the decision of the Supreme Court in the Sinnott  case and the enactment of the Act of 1998. 

Counsel for the First Defendant submitted that, as  the Plaintiff is seeking mandatory relief at an interlocutory stage, the criterion which the Court  should apply is whether the Plaintiff is likely to  succeed at the trial, there being currently the  clearest indication that the First Defendant is not  in breach of his constitutional or statutory duties  to the Plaintiff. 

I do not consider that that is the appropriate  criterion to apply at this interlocutory stage. It  involves making a judgement at this juncture as to  the strength of the respective cases of the Plaintiff  and the First Defendant, which the court is not  entitled to do, as was made clear by the Supreme  Court in Westman Holdings -v- McCormack [1992] 1IR 15 (see the judgement of Finlay, C.J.) In this  case, given the divergence `of professional opinion, it would be impossible to make such a judgement in any event and none is implicit in this decision.

The relevant criteria are those laid down by the  Supreme Court in Campus Oil Limited -v-TheMinister for Industry and Energy (No.2)   [1983] IR 88. These criteria and their application to the circumstances  of this case are as follows: 

First, is there a fair bona fide issue to be tried?  The answer is that there is undoubtedly such an issue  as to the appropriate pre-school provision of  education for the Plaintiff. 

Secondly, where does the balance of convenience lie,  for or against the grant of an injunction? The answer, in my view, is that it lies in favour of  the grant of an injunction. In reality, the refined  narrowed matter before the Court is about the  provision of money for the programme of education which the plaintiff's parents believe, and have been advised, is appropriate to his needs at this  juncture. I am satisfied that the Plaintiff's  parents could not, without incurring serious  hardship, fund the programme from their own  resources. The provision sought is specific to the  Plaintiff, is limited both in quantum and duration  and can have no significant resource or budgetary implications for the First Defendant. 

 Thirdly, would damages be an adequate remedy if the injunction were refused in the event of the plaintiff  being successful? The answer in my view is that they would not, as  there is inherent in the circumstances of the  plaintiff's family the real possibility that without  the benefit of the provision which is sought, his educational progress would be hindered. 

Fourthly, would damages be an adequate remedy if in  due course the plaintiff is unsuccessful and the  First Defendant has to have recourse to the  undertaking given by Mrs. Cronin? As is required, Mrs. Cronin has given the usual undertaking as to damages and in doing so she has  very candidly set out the family's financial  circumstances. I am satisfied that she could make  the undertaking and that the First Defendant is  adequately protected in this regard. 

I consider that this is a proper case in which to  grant a mandatory injunction in the terms sought on  an interlocutory basis. 

In reaching this conclusion, I have had particular  regard to the decision of the Supreme Court in  T. D.	-v- The Minister of Education [2001] 4 IR 259, and, in particular, to the observations of Keane, C. J. At page 287. I am satisfied that granting a mandatory injunction does not fall foul of that  decision. The relief granted is limited to the  particular needs of the Plaintiff and merely extends  a programme which the First Defendant has already sanctioned. 

THE ORDER
There will be an Order directing the First Defendant, during the pre-school phase of the Plaintiff's  education, to provide for the cost of twenty nine  hours per week one-to-one ABA tuition from appropriately qualified personnel throughout the  calendar year in his home and the cost of supervision  of his education programme measured at 300 Euro per month. 

The duration of the pre-school phase depends on appropriate arrangements being made for the plaintiff when he reaches his compulsory school going age,  which will be next September. There will be liberty  to both parties to apply in relation to the  continuation of this Order. 

END OF JUDGMENT
Approved:  Laffoy J.