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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.McD (A minor) & Anor -v- The Minister for Education & Ors [2013] IEHC 175 (17 April 2013)
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Cite as: [2013] IEHC 175
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Judgment Title: A.McD [A minor] & Anor -v- The Minister for Education & Ors Neutral Citation: [2013] IEHC 175 High Court Record Number: 2012 911 JR Date of Delivery: 17/04/2013 Court: High Court Composition of Court: Judgment by: O'Malley J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 175 THE HIGH COURT JUDICIAL REVIEW 2012/911 JR Between/ A.MCD. (A MINOR SUING BY HER FATHER AND NEXT FRIEND J. MCD.) Applicant -and-
THE MINISTER FOR EDUCATION AND SKILLS, THE HEALTH SERVICE EXECUTIVE, THE BOARD OF MANAGEMENT OF ST. MICHAEL'S HOUSE GROSVENOR SCHOOL, TOMMY FLYNN, FRANK MURRAY, JACQUELINE NI FHEARGHUSA, THE ATTORNEY GENERAL and IRELAND Respondents Judgment of Ms. Justice lseult O'Malley delivered the 17th April. 2013 1. Introduction 2. The application currently before the court arises from the fact that she has been out of school since the expulsion and efforts to find an alternative placement have to date been unsuccessful. At the moment her education is limited to 10 hours per week although funding is available to her for up to 20 hours. Background
A is often effectively kept under house arrest for her own protection, and in those circumstances she has been known to break furniture and smash windows in frustration. The incidents of her being kept in the house have increased over the last year due to the fact that I have no respite care available for A. A previous respite arrangement, which I had in place with my sister, whereby she would take A. every weekend, broke down and a subsequent respite arrangement that had been arranged through the HSE also broke down after a very short time due to A.'s violent behaviour towards the respite carer and her husband. A will often lie on the floor and scream at the top of her voice if she does not get her own way and she has done this in public on a regular basis. This has resulted in a significant diminution of my ability to have a normal family life with her. 5. Between 2005 and 2008 A. and her family were living in Northern Ireland. A. attended school there and had access to therapeutic supports but it is noted in the reports that her violence to other pupils was a difficulty. In 2008 the family came back to this jurisdiction. It seems to have taken quite some time to organise an appropriate school placement for her. In 2010 A. finally obtained a place in St. Michael's House Grosvenor School ("St. Michael's"). It appears from the reports that initially she was in a class of eight, with a teacher and two Special Needs Assistants. Her behaviour was very challenging, and after some time she was put in a class with only one other pupil, a teacher supported by two SNAs. It seems that even with this level of attention there were incidents of violence. By the end of December, 2011 she had been suspended three times. On the one day that she went to school in January, 2012 she was violent to another pupil and was re-suspended. 6. On the 20th February the Board of Management decided to expel A. "in order to ensure good order, discipline and the smooth and safe running of the school". After a 20 school-day consultation period the Board confirmed its decision on the 20th March, 2012, stating that
8. On the 12th June, 2012 the Department wrote to A.'s father to inform him of the result of the appeal and to further inform him of the availability of assistance in securing a school place from the National Educational Welfare Board. 9. The decisions in relation to the expulsion are, as noted above, yet to be dealt with as part of the subject-matter of the substantive proceedings. Developments since A.'s expulsion from school 11. On the 21st June, 2012 A.'s solicitor wrote to the Department of Education and Skills referring to the failure of the appeal, the fact that A. was now to make appropriate provision for her schooling. The letter stated that it was "very important that she has social interaction with her peers in a school environment". In closing, it was stipulated that in the event that no reply was received within 14 days, application would be made to court. 12. The Department replied on the 5th July and again, in greater detail, on the 26th July, 2012. This letter set out the first named respondent's understanding of his constitutional obligations (specifically, "to provide for education and, where the public good requires it, to provide other educational facilities or institutions rather than to provide education directly") and his obligations pursuant to the Education Act, 1998 ("to ensure, subject to the provisions of the Act, that there is made available to each person resident in the State a level and quality of education which is appropriate to meeting the needs and abilities of that person"). The services provided by the National Council for Special Education, the National Educational Welfare Board ("the NEWB") and the National Educational Psychological Service were outlined. Of these, it would appear that the NEWB was the most immediately relevant body, as it is responsible for school attendance and is charged with giving assistance in cases where there is difficulty in finding a placement. 13. In relation to the specific circumstances of A.'s case, it was stressed that the Minister did not have a direct role in identifying school placements but that, in an effort to be of assistance, applications for enrolment had been made to Carmona Special School in Dun Laoghaire and St. Augustine's School in Blackrock. It was considered that Carmona would be appropriate because it was planning to establish a new class in September 2012, while St. Augustine's could also be suitable because A. lived in its catchment area and it had a special class attached to St. John of God's hospital. The Department said that a named Education Welfare Officer was liaising with Carmona Services and that if additional resources were required for A.'s support in accessing the placement the NCSE would consider any applications from the school. 14. The Department also referred to the fact that Ms. Elaine Nolan, of the NEWB, was in the process of convening a meeting on the 9th August, 2012 for the purpose of facilitating A.'s return to school at the earliest opportunity. The persons to be invited to attend were described as "key personnel (including education stakeholders) who have been involved in A.'s case to date." 15. After the meeting the applications to Carmona (originally made in May) and St. Augustine's (originally made in July) were followed up, although according to Ms. Nolan A.'s father wished to prioritise an appeal against the expulsion. St. Augustine's turned down the application because it is a school for children with mild intellectual disability and not suitable for A., who has moderate intellectual disability. Carmona's initial response was that it could not take A. because it did not have access to psychiatric supports and therefore felt unable to meet her needs. Ms. Nolan continued to pursue this application, asking for it to be brought to the school's Board of Management and, as appears from the correspondence, liaising with the Health Service Executive, requesting support services to address the school's concerns. Carmona responded in October, requesting reports from A.'s school in Northern Ireland, St Michael's, hospital and psychological reports and information in relation to involvement with the HSE from birth to date. Ms Nolan was not in a position to furnish these as the NEWB considered that they should be sourced directly by the school. She continued to ask Carmona to progress the application. It would appear that Carmona replied in late December saying that it could not progress matters without the reports. Ms Nolan then requested a meeting in January, to which she proposed to invite the relevant organisations to gather the information required by Carmona. 16. Meanwhile, by order made on the 5th November, 2012 the applicant had been granted leave to seek judicial review as set out above. This Notice of Motion was issued on the 6th November, 2012 and came on for hearing on the 6th March, 2013. 17. On the 8th November, 2012 the Department sanctioned a further grant of home tuition for up to 20 hours per week. This is still available to A. but as it happens she is not able to cope with more than two hours per day. There is no complaint about the tutor who is working with A. 18. The requested meeting with Carmona was scheduled for February, 2013 and then re-scheduled for the 4thMarch, 2013, two days before the hearing of this application. It was attended by A.'s father and her home tutor, representatives of the NEWB, Carmona School, the HSE and the Department of Education. Carmona confirmed its view that it did not have the clinical and therapeutic supports needed by A. and it would not, therefore, offer her a place. 19. As a result of the discussions at the meeting Ms. Nolan contacted St. Catherine's Special School in Wicklow to enquire about applying for a place there. She says that she was told that there was a waiting list and A. was outside the catchment area. She further says that A.'s father contacted her the next day, after consulting his solicitor, to say that he did not want an application to be made at this time. Ms. Nolan says that she will continue to seek alternative placements for A. 20. Mr. McD., for his part, wishes to make it clear that he felt that it was obvious after the conversation Ms. Nolan had with the principal of St. Catherine's that A. would not be offered a place and that he thought there was no point pursuing it. He states his belief that Ms. Nolan has done all that she can do to find a placement for A. but that, through no fault of hers, no placement appears to be available. 21. As of the date of hearing, therefore, the position is that A has not attended school for well over a year. She now receives two hours home tuition per day, with the option of extending that up to four hours if she was able to cope with it. 22. It is Mr. McD.'s belief that the lack of a school place is having a deleterious impact on A.'s social skills as well as on her education, with consequent limitations on her future prospects. The Health Service Executive 24. As it is not a party I will not make any findings or rulings in respect of the HSE and therefore I think I should not go into the affidavits in any great detail. It may however be important to note that in January 2012 a report by Dora Marciniak, Clinical Psychologist, remarked that
It will be essential that a care plan is devised at a Multidisciplinary Meeting when A. recommences education, which will take into consideration A.'s educational needs and abilities, speech and language needs, attachment difficulties, behavioural difficulties and social skills and plan how best to meet any deficits in her development.” 26. It is common case that the State has a constitutional obligation to provide for free primary education and the applicant has a right to receive free primary education. On behalf of the applicant Mr. de Blacam says that that right must be enforceable by way of a mandatory order where that is necessary to ensure that provision is made, or it will be meaningless. He acknowledges the principle, based on the separation of powers and most strongly enunciated in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259, that the courts are reluctant to make mandatory orders against State parties and prefer where possible to grant relief by way of declaration but says that the authorities do provide scope for exceptional cases. This, he contends, is one such case. It is further argued that declaratory relief would not be appropriate in this application, there being no such thing as an interim or interlocutory declaration. 27. In particular, the applicant relies on the following dicta.
• Keane CJ at p. 631- "..while in principle there is nothing to preclude the granting of mandatory relief directed to the Minister concerned, it is appropriate, in my view, for the courts to presume that where this court grants a declaration that he or she has failed to meet his or her constitutional obligations, the Minister will take the appropriate steps to comply with the law as laid down by the courts.' • Denham J at p. 656 - "...the courts assume that decisions will be implemented and that mandatory orders are not necessary. Thus a declaratory order, if any order is necessary, is usually appropriate. However, I would not exclude the rare and exceptional case, where, to protect constitutional rights, the court may have a jurisdiction and even a duty to make a mandatory order." • Geoghegan J at p. 724 - "...I do think that in very exceptional circumstances it may be open to a court to order allocation of funds where a constitutional right has been flouted without justification or reasonable excuse of any kind." • Murray J at p. 336- "...I do not wish to determine that the courts may never make a mandatory order in anv form as opposed to a declaratory or other order, against an organ of state. In so far as McKenna v An Taoiseach (No.2) [1995] 2 IR 10, Crotty v An Taoiseach [1987] IR 713 and District judge McMenamin v Ireland [1996[ 3 IR 100 might be said to be authority for the making of some form of mandatory order where there is "a clear disregard" by the State of its constitutional obligations, it must be borne in mind that in none of those cases was a mandatory order granted .... For example, a mandatory order directing the executive to fulfil a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its obligations in an exemplary fashion. In my view the phrase "clear disregard" can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness". 29. The applicant further relies on two High Court decisions that post-date Sinnott and T.D., being the judgments of Herbert J in Nagle v Southwestern Area Health Board unrep. High Court, 30th October, 2001 and Laffey J in Cronin v Minister for Education and Science [2004] 3 IR 205. 30. In Nagle, a mandatory injunction was granted directed to the Minister for education requiring that he forthwith provide for appropriate, free primary education and support services to the plaintiff, who was not at the time receiving any education service at all. Herbert I said that he felt he had no option but to do so, since he could not make an "interim declaration" and believed that he should not make a final declaration at the interlocutory stage. In Cronin, Laffey J granted an order where the "refined, narrow matter" before the court was the provision of money for a programme specific to the plaintiff, limited both in quantum and duration and could have no significant resource or budgetary implications for the Minister. 31. In asserting an entitlement to an order at this stage of the proceedings the applicant relies on the decision of the Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88. In that case the defendant minister sought a mandatory injunction compelling the plaintiffs to comply with the terms of an order made by him pending the determination of the plaintiffs' claim that the order in question was unlawful. The plaintiffs resisted on the basis that it was probable that the validity of the order would not be upheld. The case is the leading authority for the proposition that a mandatory injunction may properly be granted where 1) the party seeking it can establish that there is a fair question concerning the right sought to be protected or enforced by the injunction and 2) the circumstances are such that the balance of convenience lies on the side of the granting of the injunction. It is argued on behalf of the applicant in the instant case that there can be no doubt as to either the existence of the right in question or the balance of convenience. 32. On behalf of the respondent Mr. Dignam SC contends as a preliminary argument that the applicant has failed to discharge the burden of proof in that, it is argued, it has not been shown by expert evidence that the current provision of home tuition, as opposed to a school placement, does not accord with her best interests or that it does not constitute an appropriate response to her educational needs. He relies on the principle that mandatory interlocutory injunctions should rarely be granted and invokes the authorities already referred to in relation to the separation of powers. Having regard to the failure of the applicant's previous placement, he says that it is clear that no placement will succeed without the support of services necessarily supplied by the HSE rather than by these respondents. (This latter proposition is accepted by the applicant, without resiling from the contention that it these respondents who bear the constitutional obligation to ensure that A.'s rights are respected.) The court should not, it said, make an order incapable of fulfilment- the Minister cannot compel a school to accept the applicant (except in the case of an appeal against a refusal to admit a pupil). Conclusions 34. However, it is not possible for me to find that the very high standard for a mandatory interlocutory injunction against these respondents has been met. The passages quoted above from Sinnott and T.D., while supporting a general proposition that in extreme cases such an order may be made, do not assist this applicant since her situation, bad though it undoubtedly is, is not in the class of case envisaged by the Supreme Court as within the definition of "extreme". There is no element of bad faith, no matter how it might be described. This is not a situation where the rights of A have been consciously and deliberately disregarded or flouted. Notwithstanding the argument made in relation to the burden of proof at the hearing, nobody involved in her case thinks that she should receive only home tuition and efforts continue to be made to find a school. The case on her behalf is effectively made, without those elements, on the basis that she is entitled to a school place, she does not have one and this is having a harmful effect on her development. That does not suffice for an order of the type sought. 35. I also agree with the view of Herbert J expressed in Nagle that a declaration at this stage of proceedings is not appropriate. However, the applicant's substantive proceedings are at an advanced stage of readiness and I see no reason why a full hearing should not be held in early course. 36. I therefore refuse the relief sought in this application. |