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Cite as: [2003] IEHC 618

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THE HIGH COURT

RECORD NO. 289 JR/2001

JAMES DUFFY AND LUCY DUFFY

APPLICANTS

AND

MATTHEW DEERY IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Gilligan J. delivered on the 15^th day of April 2003.

THE FACTS

The applicants in these proceedings reside at Derrynahinch, Drumkeerin, Co. Leitrim and are the parents of Rory Duffy who is now aged 16 years. The applicants were convicted in the District Court on the 18^th October, 2000 of an offence pursuant to the relevant provisions of the School Attendance Act, 1926 in respect of their son Rory and were each fined £ 10.00.

From this decision the applicants appealed to the Circuit Court which is a de novo hearing and the matter came on before the first named respondent at Carrick-on-Shannon Circuit Court on the 17"' day of October, 2000 and the first named respondent delivered judgment in the matter on the 18^th day of October, 2000 in which he affirmed the order of the District Court.

McKechnie J. on the 9^thday of April, 2001 by order of this Court gave the applicants leave to apply by way of an application for judicial review for the following reliefs

(a) An order of certiorari quashing the conviction dated the 18^th October, 2000 of the applicants pursuant to the School Attendance Act, 1926.

(b) A declaration that in construing the words "reasonable excuse " in section 4 (1) of the School Attendance Act, 1926 the Court is not confined to a consideration of the matters listed at section 4 (2). c) A declaration that in construing the word "suitable elementary education " in section 4 (2) (b) of the School Attendance Act, 1926 the education of and educational achievements of siblings are relevant factors.

(d) Further and/or in the alternative a declaration that in construing the words "some other sufficient cause " in section 4 (2) (d) of the School Attendance Act, 1926 the Court is obliged to admit to evidence and consider the reasons for which the child in question and/or any sibling have been withdrawn from State provided education.

(e) Such further and other relief as may seem meet and fit to this Honourable Court.

On the grounds that

(1) The hearing before the first named respondent a Judge offhe Circuit Court assigned to the Northern Circuit of the applicants appeal was conflict to the rules of natural and constitutional justice on to law in that

(a) It was unduly delay to the prejudice of the applicants.

(b) The applicants were not given any or any adequate opportunity to put their case at the hearing.

(c) The first named respondent failed to have any or any adequate regard for the reasons for which the applicants had withdrawn their children from State provided education.

(e) The first named respondent failed to have any and/or any adequate regard to the education given by the applicants to the sibling or Rory Duffy.

(2) In construing the meaning of section 4 (1) and section 4 (2) (b) and section 4 (2) (d) of the School Attendance Act, 1926 the first named respondent applied a test that was contrary to law and/or contrary to the provisions of the said sections.

(3) The determination made by the first named respondent was contrary to the balance of the evidence irrational erroneous and contrary to law and/or commonsense in that

(i) It contradicted the first named respondents determination in June, 1999 that the applicants were acting lawfully in withdrawing their son from State provided education.

(ii) It failed to have any or any due regard to the balance of the evidence.

(iii) It was based on inadmissible evidence and/or irrelevant considerations and/or was based on evidence that the applicants had no or no proper opportunity to test by way of cross-examination or otherwise.

STATEMENT OF OPPOSITION

The respondents deny that the hearing before the fist named respondent of the applicants appeal was contrary to the rules of natural or constitutional justice or to law in the manner alleged or at all and the matter set out in sub-paragraphs i to vii of paragraph 5 (a) of the statement of grounds he reached denials if the same were set forth hereafter and denied seriatim.

Without prejudice to the generality of the foregoing paragraph

2. It is denied that there was the alleged or any delay such as is referred to at paragraph 5 (a) (i) of the statement of grounds. The second and third named respondents do not understand this allegation as no particulars are given of any alleged delay. If there was the alleged or any delay (which is denied) it is denied that there was any prejudice to the applicants.

3. The allegation at paragraph 5 (a) (ii) of the statement of grounds is not understood and is denied. No particulars or details of the allegations of the applicants were not given any or any adequate opportunity to put their case of hearing are given.

4. It is denied that the first named respondent failed to have or any adequate regard to the education given by the applicants to the sibling of Rory Duffy.

5. Without prejudice to the foregoing paragraph it is not admitted that the first named respondent was obliged to have regard to the education given by the applicant to the sibling of Rory Duffy or that the first named respondent was obliged to take same into account or that any evidence was proffered by the applicants in relation to the education given by them to the sibling of Rory Duffy.

6. The matters set out at paragraphs 5 (a) (vi) and (vii) are not understood and are denied. The second and thud named respondents are unable to plead to the grounds. There is no particulars or details of the matters alleged or furnished.

7. The matters set out in paragraph 5 (b) of the statement of grounds are not understood and are denied. The applicants do not specify the test which they allege was applied by the first named respondent nor did they state in what respect such test was contrary to law and are contrary to section 4 (i) 4 (ii) (b) or 4 (ii) (d) of the School Attendance Act, 1926. The second and third named respondents are unable to

plead to these grounds as no particulars or details of the matters alleged are furnished.

8. It is denied that the "determination " by which the second and third named respondents assume is meant the conviction of the applicants made by the first named respondents was contrary to the balance of the evidence irrational or erroneous or contrary to law or commonsense whether in the manner alleged or at all.

9. It is denied that the determination of the first named respondent contradicted the first named respondents determination in June, 1999 that the applicants were acting lawfully in withdrawing their son from State provided education. In relation to this allegation the second and third named respondents say as follows

(a) It is admitted that the Circuit Court sitting at Boyle, County Roscommon upheld on the 23`^d June, 1999 an appeal by the applicants herein against conviction in the District Court in respect of offences under the School Attendance Act, 1926.

(b) However the first named respondent did not preside over the Circuit Court on that occasion. His Hon. Judge Anthony Kennedy SC in fact presided on that date and upheld the appeal.

(c) It is not in any event admitted that his Hon. Judge Kennedy held that the applicants acted lawfully in withdrawing their son from State provided education.

(d) The finding of his Hon. Judge Anthony Kennedy has no relevance to the proceedings herein.

10. The matters set out at paragraph 5 (c) (ii) and (iii) are not understood and are denied. The second and third named respondents are unable to plead to these grounds because no particulars or details of the matters alleged are furnished.

11. The applicants are not entitled to reliefs sought or to any reliefs.

THE JUDGMENT

Judgment of the first named respondent as handed down on the 18ti' day of October, 2000 at Carrick-on-Shannon Court as evidenced in the affidavit of Brendan Comyn as sworn on the 31^St day of March, 2003.

"Article 42 of Constitution states that `The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the right and duty of parents to provide according to their means for the religious and moral, intellectual, physical and social education of their children.

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

3(1) 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.

3(2) 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.

The role of the State is as guardian of the common good to ensure that the children receive a certain minimum education which is not any further defined.

The Supreme Court in the recent Christine Best case did determine that it is a matter for the Court to find as a fact whether the child in question is receiving a minimum education in accordance with the terms of the Constitution and the School Attendance Act, 1926, in particular Section 4 of the Act. This Section sets out an obligation on the parent of every child to attend school unless there is a reasonable excuse.

Subsection (b) defines reasonable excuse as including "that the child is receiving suitable elementary education in some manner other than by attending national or other suitable school.

The obligation rests on the parents to show that they come within this exclusion.

The evidence in regard to the education of Rory Duffy has come from Dr. Alan Thomas. No issue was or could be taken with his credentials and experience. He has stated that he spent a total of 4 days in the Duffy household and gave details f om his lengthy report of the discussions with the parents, his meetings with Rory, his appraisal of what he states were Rory's workbooks, even though he did not witness Rory do any work, nor were any teaching sessions organised or undertaken either for the benefit of Rory or for the benefit of Dr. Thomas's observations. Dr. Thomas did not carry out any literacy or numeracy tests and he has offered the view that they are not appropriate.

It has been pointed out in the Best case that the Constitution is a living instrument and it must be construed as of its time and not as a historical document. What might be a certain minimum education structured in the 1940's may not be appropriate now due to changing social circumstances and

requirements for different types of employment. The child has the right to education to a standard that will permit him to integrate fully with his peers and to permit him to take advantage of such opportunity in employment and self development as other children have available to them.

Having regard to the evidence in this case - I am not satisfied that Rory Duffy is receiving suitable elementary education. In this regard the evidence presented by the defendants fails to establish.

(a) That Rory was observed at anytime working or pursuing any study period or method.

(b) That any structure was in place to employ any specified time by way of an hour or hours or day or days to any subject or project.

(c) There is no evidence of observing the defendants actually impart any information or instruction to Rory.

(d) When requested to write something by Dr. Thomas, Rory did not comply and the evidence in this regard leads me to conclude that while Dr. Thomas is of the view that such a chore was too identifiable with schoolwork and thereby distressing, I am driven more to the conclusion that this is unusual and could equally derive from the inability of the child to perform a very simple request.

(e) No literacy or numeracy tests were undertaken and I do not accept the explanation for this. Such tests can be useful in making an assessment.

No objective criteria were used to try to establish the level of education which Rory has had available to him. While there has been reference to books and interests, no basis has been explored before the Court to show that Rory has employed time in trying to absorb these works.

In my view Rory has been left in a position of disadvantage where he is unlikely to be capable of performing as well as other students of his age in either competition for entry to further education or employment. In our present stage of social development his level and quality of education is very central to his future employment and development prospects.

I therefore affirm the District Court Order. "

THE APPLICANTS SUBMISSIONS

When these proceedings came on for hearing before this Court the applicants represented themselves. Both Mr. and Mrs Duffy advanced a case that they believe passionately that they have acted in their sons best interest and in this regard they are supported by Alan Thomas of the University of London Institute of Education and they cannot comprehend that the first named Respondent could come to the conclusion he did having heard the evidence adduced before him. The Applicants' submissions were on two central grounds.

They submit firstly that the appeal as conducted before the first named respondent was procedurally deficient on grounds that the school attendance officer Garda McMahon gave no evidence as to the education which Rory was getting at home and he confirmed that he had not been issued with any rules or guidelines as to the criteria to apply to a child who was being educated at home or a child who had been physically abused in school in that he indicated that his only fiinction was to establish whether or not a particular child was or was not attending school. Further they submit that Dr. Thomas was impeded in the manner in which he gave his evidence in that they alleged that the first named respondent told him that it was not necessary to give any background observation or to give evidence in relation to the applicants elder son and they alleged that in marked contrast to when Dr. Thomas was being cross-examined the atmosphere was noticeably less hurried and the case was adjourned for lunch with the observation by the Judge to the solicitor acting for the prosecution that "I am sure you will have lots more questions for Dr. Thomas when he returns. "

The Applicants' second ground of submission is on the basis that the first named respondents judgment was irrational and unreasonable and that there were no supporting facts upon which the first named respondent could reasonably have come to the conclusion he arrived at. Further they criticise the first named respondent in alleging that the judgment created the impression that the first named applicant was the sole educator of Rory and that this mischaracterised his evidence and gave no credence to the second named applicants involvement in the education of their son. The applicants further contend that the first named respondent in his judgment did not deal with the evidence of Dr. Alan Thomas at all. The applicants further allege that in giving his judgment the trial Judge indicated that he was satisfied that the incident described by a Peadar Molloy who gave evidence of a named teacher at Drumkeerin National School striking the son Rory was a "once off incident. " The applicants submit that corporal punishment of any sort has been unlawful since 1982 and that no Garda investigation has been carried out despite a complaint made in respect of their son.

The applicants further contend that as far as the Judge was concerned the case was simply a matter of establishing whether or not their child was at school. He did not consider what alternatives could be or had been put in place other than conventional school based education. No cognisance was taken of the recent legal developments in the field of home education and short shrift was given to evidence in support of these alternative approaches.

THE RESPONDENTS SUBMISSIONS

The respondents submit that no matter to what extent the applicants believe that they were acting in the best interest of their son these proceedings as brought by way of judicial review are not a re-hearing and the subject matter of the application is the process of the decision making and not the decision itself. Further it is contended that the proceedings were procedurally fair and that there is no meaningful allegation laid against the first named respondent as to the manner in which the District Court appeal was heard before him. The applicants called such witnesses as they saw fit including Dr. Alan Thomas, that the time given to the hearing was not restricted in any way and that insofar as it is alleged that the judgment of the first named respondent was irrational or could not reasonably have been arrived at, it is clear that the decision taken was arrived at on the basis of the evidence adduced before the Court. It is contended that the first named respondent reserved his decision and having had the benefit of the evidence as adduced before him including an 18 page report as prepared by Dr. Alan Thomas and which was handed into Court and having given the matter due consideration delivered his judgment the following day which clearly was reasoned and based on the evidence adduced before him and in particular the evidence of Dr. Alan Thomas.

THE APPLICANTS AFFIDAVITS

I do not consider it necessary to set out in precise detail the content of the affidavits upon which the applicants rely. I believe that it is reasonable that the contents can be summarised. In an affidavit as sworn by James Duffy the first named applicant herein on the 6t" day of June, 2001 (which encompasses the matter as deposed to by James Duffy in the earlier affidavits to ground the application for leave to apply for judicial review in this matter as sworn on the 7t'' day of April, 2001) he avers that he and his wife had been educating both their children, being Rory and his older brother at home since October, 1995. He refers to certain problems which their older child encountered and how both their children were removed from the local primary school at Tarmon to the national school at Drumkeerin. Apparently the applicants' elder son met with a fall in the school yard which resulted in legal proceedings which were resolved to the applicants satisfaction in 1996.

The first named applicant refers to problems which both their children were encountering at school and they aver that the situation at school for both their children was at crisis point and they were unable to resolve the problems they foresaw as a result of which they took both boys home and commenced a programme of education which was predominantly of their own input. Reference is made to the proceedings coming on in the District Court and being adjourned and of the eventual conviction and the appeal against the conviction coming on for hearing on the 17^ti' October in Carrick-on-Shannon before the first named respondent. Both applicants represented themselves and the school attendance officer Garda McMahon gave evidence that Rory was not in school but gave no evidence as to the education which Rory was getting at home and that he had no knowledge of any rules or guidelines as to the educational criteria to be applied to Rory.

The first named applicant referred to Dr. Alan Thomas having carried out a home education assessment and that he gave evidence before the first named respondent and that the first named respondent queried him as regards the background observations to be made in respect of the applicants elder son and the first named applicant avers that the trial Judge indicated that this evidence would be "too long". But in marked contrast when Dr. Thomas was being cross-examined the atmosphere was noticeably less hurried and the case was adjourned for lunch with the observation by the Judge to the solicitor acting for the prosecution that "I am sure you will have lots more questions for Dr. Thomas when he returns. "

Reference is made to the fact that the school attendance officer was the only witness called on behalf of the State; that no reference was made in the first named respondents judgment to the educational role as played by the second named applicant and that the impression given was that the first named applicant was the sole educator of Rory, that the first named respondent did not deal with the evidence of Dr. Alan Thomas at all in his judgment and that the first named respondent indicated that he was satisfied that the incident described by Peadar Molloy who gave evidence in relation to a named teacher at Drumkeerin national school striking their son was a "once off incident. " The first named applicant says that corporal punishment of any sort has been outlawed since 1982 and that no Garda investigation has been carried out despite the applicants complaints. The applicants allege that the first named respondent took the view that this case was all about simply establishing whether or not their child was at school and no consideration was given to any alternative. In a further affidavit as sworn by the first named applicant on the 29"' November, 2001 the first named applicant reiterates the situation that pertained to his two children being moved to Drumkeerin National School. That bullying was taking place involving his children and of general problems with his two children attending school, of the background circumstances to the District Court prosecution, to the appeal against the conviction which is the subject matter of this application alleging that the general atmosphere in Court was far from that which is described in the affidavits filed in opposition to the applicants claim herein. Further that the first named respondent was aware of a report of Martin Cooke who was a tutor who had spent a period teaching both the applicants children and that he was of the view that such progress as Rory had made would be lost if he were returned to a normal school environment. He reiterates that his wife was involved in Rory's education and that the impression was given that he was the sole educator and that this mischaracterised his evidence. He further reiterates that insofar as the first named Respondent was concerned the case was a simple matter of establishing whether or not his child was at school. He did not consider what alternatives could be or had been put in place other than conventional school based education and that overall the Judge appeared to resist the consideration of any programme other than that of conventional school based education. That no cognisance was taken of the recent legal development in the field of home education and again reiterates the short shrift was given to evidence in support of these alternative approaches.

The applicant refers to unrelated Circuit Court proceedings in Boyle on the 23`^d June, 1999 and refers to Garda McMahon although knowing that corporal punishment complained of was not simply a once off incident nevertheless seeks to support the first named respondents finding in this regard and seems to feel that this is an irrelevant fact in determining whether the applicants withdrawal of Rory from school was justified or not. An affidavit as sworn by the first named applicant on the 27^th day of February, 2003 was opened further to the Court which emphasised the importance of the evidence of Dr. Alan Thomas and the content of his report and of the evidence that was presented before the first named respondent.

The first named applicant took issue with certain averments as made by Sergeant Noel Boyle and says that neither Mr. Pierce Brennan or Martin Cooke gave evidence at Carrick-on-Shannon Circuit Court on the 17t" October, 2000. He avers that the observations of Sergeant Boyle and Garda McMahon are unreliable. He queries why Sergeant Noel Boyle did not keep a note of the judgment of the first named respondent and refers to alternative Circuit Court proceedings related to a non-connected similar summons and in particular that both he and the second named applicant are under no misapprehension as to the issues that were before the first named respondent. He avers that Sergeant Boyle and Garda McMahon are silent as to the quality of education being provided by them or even the criteria which ought to be used to assess home education or a child who had been abused in the school.

Alan Thomas of the University of London Institute of Education avers in an affidavit as sworn on the 9ti' day of January, 2002 that he is a qualified teacher and a chartered psychologist and a fellow of the British Psychological Society and that his speciality is in child development. He refers extensively to what occurred at the District Court hearing on the 15^ti' May, 2000 and to events surrounding that hearing.

With reference to the Court hearing, the subject matter of this application he says that he was in attendance and that he handed in his report to the Court but was not able to present it orally in full. He avers that he was asked in cross-examination if he had carried out any tests on Rory in particular tests of literacy and numeracy and he informed the first named respondent repeatedly that in his judgment that while such tests have their uses they were not appropriate in this case. He made it clear that such tests only provide information concerning where a child is, at a specific point in time. They would tell us nothing about the quality or the appropriateness of the education being received by Rory and as he concluded in his report he was fully satisfied that at least a minimum level of education was being provided. He also made it clear that in any case Rory's psychological health should take precedence and that he was strongly of the opinion that it was in Rory's best interest that he be educated at home.

A further affidavit from Dr. Alan Thomas sworn on the 30"' day of March, 2003 was also opened to the Court as a response to the copy judgment of the first named respondent which was furnished to the Applicants and exhibited in the affidavit of Brendan Comyn as sworn on the 31" day of March 2003 and essentially Dr. Thomas takes issue with the judgment and reiterates his view that while there can be no certainty that he strongly believes that on balance Rory's best interests were served by his parents decision to educate him at home.

In an affidavit sworn on the Applicants' behalf by Peadar Molloy on the 5"' day of March, 2003 he avers that he gave evidence before the first named Respondent on the 17"' of October, 2000 to the effect that he saw a named teacher raging at the Applicants' son Rory and hitting him with a ruler.

RESPONDENTS AFFIDAVITS

Noel Boyle in an affidavit as sworn on the 24"' day of October, 2001 avers that he is a Garda Sergeant and was the school attendance officer for the Garda sub-district of Drumkeerin, County Leitrim. He was not the prosecuting Garda in respect of the conviction, the subject matter of these proceedings and was only in attendance at the Circuit Court hearing of the District Court appeal by reason of his experience. He says the case before the first named respondent was held on the 17^1h October, 2000 in the Circuit Court at Carrick-on-Shannon, County Leitrim and to the best of his memory it may have been the only case heard that day. It commenced shortly after 11.00 a.m. and finished about 4.00 p.m. He says that the first named respondent reserved judgment until the following morning and gave his judgment on the 18^th October, 2000 and that it took approximately half an hour for the first named respondent to deliver his judgment at the end of which the first named respondent dismissed the applicants appeals and affirmed the order of the District Court except the fine on the second named applicant which was removed.

He says that Garda McMahon was the only witness on behalf of the State and that the first named applicant conducted the defence of both applicants and called as witnesses Dr. Alan Thomas and Mr. Peadar Molloy and as far as he can recall Mr. Pierce Brennan and Mr. Martin Cooke. The defence witnesses were cross-examined by Mr. Gibbons on behalf of the prosecution.

He takes issue with the first named applicants averment that the Judge did not deal with the evidence of Dr. Alan Thomas at all in his judgment and says that this is quite untrue. Dr. Thomas proffered in evidence his report and was cross-examined on same by Mr. Gibbons and that Dr. Thomas was repeatedly pressed in cross-examination as to whether the education provided to Rory Duffy was of a sufficient standard.

In the first named respondents judgment, he avers that reference was made to no literacy or numeracy tests having been conducted by Dr. Thomas and to the lack of objective criteria and he says the first named respondent considered Dr. Thomas's evidence but did not accept that it indicated that Rory Duffy was receiving a suitable elementary education.

He refers to the alleged assault on Rory Duffy by a teacher at Drumkeerin National School, to a previous hearing on a separate matter that took place before Judge Anthony Kennedy in the Circuit Court and to the facts that the first named respondent had full access to the report of Dr. Alan Thomas which referred extensively to the education that was being provided by both applicants to their son.

Mr. Boyle in a supplemental affidavit as sworn on the 6th day of December, 2001 in reply to the affidavit of the first named applicant as sworn on the 29^th November, 2001, takes issue with certain averments as made by the first named applicant and in particularly avers that Dr. Thomas in addition to submitting his report in evidence was given every opportunity to expand on his position. He takes issue with the averments at paragraph 19 of the first named applicants affidavit wherein the applicant avers that the first named respondent did not deal with the evidence of Dr. Alan Thomas at all in his judgment.

Kevin McMahon deposes in an affidavit as sworn on the 24^th day of October, 2001 that he is a member of An Garda Siochana, that he was the appointed school attendance officer for the Drumkeerin area and he gave evidence at the hearing in the District Court and at the Circuit Court hearing before the first named respondent herein. He accepts that he was not equipped with rules or guidelines to assess the adequacy or otherwise of the education being afforded to a child not attending at school and that his role was to assess whether or not there were grounds for a prosecution under the School Attendance Act, 1926. The matter was for the applicants to satisfy the Court that there was a reasonable excuse within the meaning of section 4 of the Act.

He avers that every consideration was given to the applicants in presenting their defence and that they were not constrained in any way in doing do. He avers that the first named respondent reserved his judgment until the following day and that he believes that it was apparent from the judgment that he considered the totality of the evidence adduced before him.

Patrick Harney in an affidavit as sworn on the 12^th day of November, 2001 deposes to the fact that he is a Sergeant in An Garda Siochana stationed at Sligo Garda Station and that in November, 1998 a complaint was received from the first named applicant in relation to an alleged assault on his son Rory which had allegedly occurred some five years previously when Rory was approximately seven years of age. He took a statement from Rory Duffy and James Duffy and referred the matter to the Director of Public Prosecutions who indicated a decision not to proceed with a prosecution.

THE LAW

Applicants in a case such as this are not entitled to introduce new evidence in relation to the issues involved or to a re-hearing. Lord Brightman in Chief Constable of North Wales Police v. Evans (1982) 1 WLR at 1155 succinctly sets out the position as follows:

"Judicial review is concerned not with the decision but with the decision making process. Unless that restriction on the power of the Court is observed the Court will in my view under the guise of preventing the abuse of power be itself guilty of usurping power. "

Judicial review as the words imply is not an appeal from a decision but a review of the manner in which the decision was made.

O'Hanlon J. in Lennon v. District Justice Cli ord (1992) 1 IR 382 at page 386 specifically deals with the situation that pertains in this application where an attempt is being made to Judicially Review a decision of a lower Court.

"The general tenor of the decisions is that the High Court is not available as a Court of Appeal from decisions of other tribunals except where it is given such a function by statute, and that the scope for challenging the validity of orders made by lower Courts by way of judicial review proceedings is confined to those case where reliance can be placed on want of jurisdiction, or excess of jurisdiction; some clear departure from fair and constitutional procedures; bias by interest, fraud and perjury, or decisions containing an error of law apparent on the face of the record. "

Article 42 of the Constitution of Ireland 1937 provides;

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 parents to provide according to their means for 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 (1). 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. 3(2). The State shall however as guardian of the common good require in view of the actual conditions that the children receive a certain minimum education, moral, intellectual and social.

Section 4 (1) of the School Attendance Act, 1926 provides inter alia that;

"The parent of every child ... shall unless there is a reasonable excuse for not so doing cause the child to attend a national or other suitable school ... "

Section 4 (2) (b) of the Act of 1926 provides inter alia that it shall be a reasonable excuse for failure to comply with section 4 that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school.

Section 17 provides inter alia that when a child fails to attend school the parent should be served with a warning notice and if he fails to provide a reasonable excuse for failing to send his child to school shall be guilty of an offence.

Section 18 (2) provides inter alia that the burden of proof of showing there was a reasonable excuse for the non-attendance of the child in the school and that the child is receiving suitable elementary education in some manner other than by attending a national school shall be on the accused.

Denham J. in DPP v. Christine Best (2000) 2 IR 17 at page 50 deals specifically with what is meant by a "suitable elementary education" and she stated;

"The fact that the legislature has not defined what constitutes a `suitable elementary education 'does not prevent the District Judge from pronouncing a formal order of conviction or acquittal as the case may be. There should be expert evidence before the District Judge as to suitable elementary education. Having heard the evidence the District Justice should make findings of fact. She should determine whether the education the children are receiving is `suitable elementary education. ' In construing `suitable elementary education' it must not exceed `a certain minimum education moral, intellectual and social'. This is a minimum standard of elementary education of a general character but should have regard to the intellectual and other capacities of the child. It is not necessarily equivalent to the primary school curriculum. It is a minimum education moral, intellectual and social which must be considered in light of factors including those previously reviewed such as the time the issue is determined, the family, the parents, their means, the child, the geographical situation, the actual circumstances and the common good. In balancing these factors which is not an exhaustive list the District Judge should while recognising the parental and family rights at the same time acknowledge the child's constitutional rights and the duty of the State as guardian of the common good. An education which creates a discriminatory situation for the child may establish circumstances where the rights of the child and the interest of the common good outweigh considerations of the family and parental rights.

If on the evidence the District Judge finds as a fact that the parent is not providing a suitable elementary education she should convict. If the District Justice finds as a fact that the parent is providing a suitable elementary education she should acquit. According to the act the onus rests on the parent to provide a reasonable excuse. "

Insofar as the applicants contend that the judgment of the first named respondent is unreasonable or irrational this particular aspect has been given extensive consideration in the State (Keegan) v. Stardust Compensation Tribunal (1986) IR 642 and in particular at page 658 where Henchy J. states;

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and commonsense. If it does then the decision maker should be held to have acted ultra vices fog° the necessarily implied constitutional limitation ofjurisdiction in all decision making which affects rights or duties requires inter alia that the decision maker must not flagrantly reject or disregard fundamental reason or commonsense in reaching his decision. "

I am satisfied accordingly that the relevant law applicable in this application for judicial review is that the applicants are not entitled to adduce fresh evidence nor in any way to attempt to mount an appeal from the decision of the first named respondent herein in deciding the issue against the applicants. They can only review the actual decision making process and in order to succeed in this regard this Court would have to be satisfied that the first named respondent did not have jurisdiction to deal with the matter in the first instance or alternatively that there was some clear departure from fair and constitutional procedures, bias by interest, fraud or perjury or that the first named respondents decision contained an error of law apparent on the face of the record.

Insofar as the education of a child is concerned it is clear that the Constitution provides for parents to provide education in their homes but subject to the proviso that the child receives a certain minimum education, moral, intellectual and social.

If a child is not attending school the parents of the child are open to a prosecution pursuant to the relevant provisions of the School Attendance Act, 1926 unless they can provide a reasonable excuse for failing to send the child to school and a reasonable excuse in this regard is that the child is receiving suitable elementary education in some manner other than by attending a school and the burden of proof in this regard rests on the parent or parents as the case may be.

Insofar as a contention is made that the first named respondent's judgment and the decision he arrived at is unreasonable or irrational, the applicants have to satisfy the court that on the balance of probabilities the decision arrived at 'unambiguously flies in the face of fundamental reason and commonsense', or that on the evidence adduced before the first named respondent it was not open to him to come to the conclusion arrived at.

CONCLUSION

I have no doubt but that the applicants herein believe passionately that they have acted in the best interest of their child Rory and that the education which they have organised and provided for him is "suitable elementary education" and that their actions are incompliance with the relevant provisions of Article 42 of the Constitution of Ireland and that they fervently believe that they committed no offence pursuant to the relevant provisions of the School Attendance Act, 1926. That as it may be I am also satisfied that in order for them to succeed in this application for judicial review they have to satisfy the Court as a matter of law that there was a defect in the decision making process and in this regard the onus of proof rests on them. I am satisfied on the evidence that the applicants were not fettered in any way in the manner in which they presented their defence before the first named respondent and insofar as there is a divergence of evidence as to whether or not Dr. Alan Thomas was fettered in any way in the manner in which he gave his evidence I prefer the views as expressed by Sergeant Boyle and Sergeant McMahon to the effect that Dr. Thomas was given every opportunity to stand on his position and was not restrained in any way in doing so.

Insofar as the first named applicant in his sworn affidavit of the 6`^h day of June, 2001 avers that the first named respondent did not deal with the evidence of Dr. Alan Thomas at all in his judgment I reject his averment as it is abundantly clear from the judgment as delivered by the first named respondent that he has dealt at length with the evidence of Dr. Alan Thomas and that it formed a central role in the decision which he arrived at.

It is quite clear to this Court that the first named respondent afforded the applicants herein every opportunity to present their case, that he reserved judgment overnight, that he considered the evidence adduced before him including the extensive report from Dr. Alan Thomas that was handed into him and that in a reasoned and exemplary judgment he decided the issue which was before him which was as to whether or not the applicants son Rory was receiving a suitable education in some manner other than by attending a national or other suitable school. He commented extensively on the evidence of Dr. Alan Thomas and refers to article 42 of the Constitution and its relevant provisions, the relevant sections of the School Attendance Act, 1926 and the significance of the law as expounded in DPP v. Best (2000) 2 IR 7 and this Court is satisfied that the conclusion as arrived at by the first named respondent was clearly open to him on the basis of the evidence as adduced before him and the relevant law pertaining.

I am satisfied that under no circumstances could the content of the judgment as delivered by the first named respondent or the decision arrived at be deemed to be irrational or unreasonable or to fly in the face of reason or commonsense. I am satisfied as a matter of law that the first named respondent in the first instance had jurisdiction to deal with the matter before him and in the second instance did not in any way exceed his jurisdiction in the matter. There was no departure from fair or constitutional procedures, no suggestion whatsoever of bias by interest or fraud or perjury and there was no error of law apparent on the face of the record.

I am satisfied on the evidence adduced that there was nothing wrong with the decision making process in this case.

In these circumstances I decline to grant the applicants the relief as sought and I dismiss the application.