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D.P.P. v. Best [1998] IEHC 132; [2000] 2 IR 17; [1998] 2 ILRM 549 (31st July, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/132.html
Cite as:
[1998] 2 ILRM 549,
[2000] 2 IR 17,
[1998] IEHC 132,
[2000] 2 ILRM 1
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D.P.P. v. Best [1998] IEHC 132; [2000] 2 IR 17; [1998] 2 ILRM 549 (31st July, 1998)
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.
2. 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....."
3. 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:-
(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.'"
4. 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.
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."
5. 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."
6. 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.
7. 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."
8. 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.
9. 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."
10. 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."
11. 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.
12. 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.
13. 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."
14. 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."
15. 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.
16. 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.
17. 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.
© 1998 Irish High Court