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Cite as: [1999] IESC 131

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Best v. A.G. [1999] IESC 131 (27th July, 1999)


The Supreme Court

Best
V

Attorney General

Judgment delivered by Denham J on 27th July, 1999:

1.      This is an appeal by the Director of Public Prosecutions from a judgment of the High Court delivered on 31 July, 1998 on a Consultative Case Stated, from Judge Mary O'Halloran, a Judge of the District Court sitting at the District Court at Listowel, pursuant to s 52 of the Courts (Supplemental Provisions) Act, 1961. The terms of the Case Stated were:

"1. At a sifting of the District Court held at Listowel on the 23 July, 1997, the said Accused Christine Best was prosecuted as follows:- 'that between 7 December, 1995 and 27 June, 1997, at Stacksmountain, Kilflynn, Co Kerry, in the court area and district aforesaid, she the said defendant, being the parent of William Best and Niall Best, children, not less than six nor more than fourteen years of age, had failed to comply with a warning notice served on her on the 21 February, 1997, in accordance with the provisions of the School Attendance Act, 1926, as amended by the School Attendance (Amendment) Act, 1967, requiring her within one week after the service of such warning notice to cause said children to attend school or to give to the enforcing authority for the said area a reasonable excuse for not so doing, contrary to the provisions of the statute in that ease made and provided'.

2. At the hearing of the said complaint it was proved that the said children, William and Niall Best, did not attend at 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 childrens' educational position. The case was adjourned to enable said assessment to be undertaken which assessment was before the Court on 27 January, 1998.

4. On the 27 January, 1998, Dr Padraigh O Donnabhain, District Inspector, Dept of Education and Science, the author of the Assessment Report, gave evidence in line with said report [a copy of which was attached to the case stated].

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 a 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.

2.      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

(a) The Oireachtas has not to date defined in Legislation what constitutes a suitable elementary education as per Section 4 (2)(b) School Attendance Act, 1926.

(b) In view of the relevant provisions of Article 42 of Bunreacht na hEireann . . .'."

High Court

3.      The High Court delivered judgment on 31 July, 1998. Geoghegan J pointed out that in this case an excuse was offered by the Respondent, which purported to be a reasonable excuse, which was that the children were being educated at home. The Learned Trial Judge referred to the constitutional right of parents to educate children in the home and the qualification which the Constitution poses in relation to the parents' right. He determined 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 Act. He pointed out that the legislature has not defined in legislation the terms of the Constitution "a certain minimum education". He held:

"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.

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."

4.      The Learned High Court Judge addressed the issue as to whether the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, is essential or not to comply with the constitutional minimum. He was of the opinion it was not essential to include Irish. Mr Justice Geoghegan concluded that on the particular facts of this case 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. Pursuant to s 52(2) of the Courts (Supplemental Provisions) Act, 1961 liberty was given to the Director of Public Prosecutions to appeal to this Court.

Appeal

5.      The Notice of Appeal set out four grounds of appeal:

(i) The Learned Trial Judge erred in law and in fact in holding that if no evidence had been available from an Inspector from the Department of Education the Learned Judge of the District Court would have been bound to acquit the Respondent.

(ii) The Learned Trial Judge erred in law and in fact in holding that Article 42 of the Constitution to the extent that it ensured that parents should be free to provide education in their homes or in private schools or in schools recognised or established by the State, meant that the Respondent would have a complete defence to the charge were it not for the provisions of Article 42(3)(2) of the Constitution.

(iii) The Learned Trial Judge erred in law and in fact in drawing the inference from the report of the Inspector of the Department of Education annexed to the Case Stated and/or finding as a fact that the education actually being provided for the children of the Respondent was of such a nature or of such a standard as would prevent any Judge of the District Court from finding as a fact that a suitable elementary education was not being provided.

(iv) The Learned Trial Judge erred in law and in fact in drawing the inference and/or in finding as a fact that there was no necessity to include the Irish language in the curriculum being offered to the children of the Respondent in order for them to be in receipt of a suitable elementary education."

Submissions

6.      Mr Maurice Gaffney, SC, Counsel for the Director of Public Prosecutions, submitted that from the statute it was clear: (i) the Respondent was obliged, unless there was a reasonable excuse for not so doing; to send her two children to attend the local school on the relevant dates; (ii) in the exercise of its functions pursuant to Section 17 of the Act, the School Attendance Officer did not deem the "excuse" offered on 26 February, 1997 to be a "reasonable excuse" within the meaning of Section 17(1)(a) and a prosecution ensued; (iii) a conviction will ensue following proof of the relevant formal procedural steps (which are not in issue in this case stated) unless the Respondent can satisfy the District Court that her children are "receiving suitable elementary education in some manner other than by attending a national or other suitable school", this being the only "reasonable excuse" suggested by or on behalf of the Respondent. He submitted that while the rights of the child must be considered and full regard must be given to the inalienable right of parents to provide education in their homes, full regard must also be given to the duty of such parents to provide this education and to the right of the child to receive such education. He submitted that the State has a role as guardian of the common good in this regard permitting the State to require, in view of actual conditions, that children receive a certain minimum education. Mr Gaffney submitted that the Learned High Court Judge erred in law in failing to answer either affirmatively or negatively the question posed and furthermore in offering an opinion as to the conclusion on the evidence to which the District Judge was entitled to come. Mr Gaffney pointed out that the School Attendance Act, 1926 is not challenged in these proceedings. While it must be interpreted in light of the provisions of the Constitution, he submitted it cannot be interpreted so as to permit the State to require more than 'a certain minimum education'. Mr Gaffney submitted that it was for the District Judge to find the facts. It was the task of the District Judge to determine as a fact whether the education being received by the children was suitable within the meaning of the Act, bearing in mind the constitutional requirements. He submitted that it was both practicable and equitable that it should be left to a Judge of the District Court to determine whether in given circumstances education being actually given to a child or children in that area satisfies the requirements of the Constitution. He submitted that it was fundamental to the enforcement procedures in the 1926 Act that the onus lies upon the parent who wishes to educate the child in the home to undertake the burden of proving that the child is receiving suitable elementary education. The details of such education being provided in the home are matters peculiarly within the knowledge of the parents. In the context of the State attempting to vindicate the unenumerated right of a child to receive an education it is both reasonable and proportionate for the State to lay the burden on the parent to establish by proper evidence before a Judge of the District Court that they are discharging their duty. He submitted that in the instant case, Judge O'Halloran has considered a body of evidence and has found that the children are not in receipt of suitable elementary education of general application viz a viz (sic) the primary school curriculum of the State. She has not found that the suitable elementary education to which they are entitled equates with the primary school curriculum but rather it would appear that having regard to that curriculum she is satisfied that the education they are actually receiving is not a suitable elementary education. She does not seek the advice of the High Court as to whether the children are in fact in receipt of what she should regard as a suitable elementary education having regard to the primary school curriculum of the State, but rather she wishes to know whether she is prevented in law from convicting the Respondent because of the fact that the legislature has yet to define in legislation what constitutes a suitable elementary education and because of the existence of Article 42 of the Constitution: He submitted that the provisions of Article 42 do not contradict or render inoperable the provisions of the School Attendance Act, 1926; rather they form a context for the interpretation of what amounts to a "suitable elementary education". The mere fact that the Oireachtas has not defined in legislation what it believes to be a suitable elementary education does not debar the Trial Judge from convicting in the particular circumstances. It was submitted that the Consultative Case Stated should be answered in the negative.

7.      Mr Roderick Murphy, SC, appeared on behalf of the Attorney General who became a Notice Party, pursuant to Order 60, Rule 2, of the Rules of the Superior Courts, at the request of the Court. He submitted that a fundamental objective behind the education provisions of Article 42 is to ensure that a child receives "a certain minimum education, moral, intellectual and social". The primary and natural educator is the family but the State, with due regard for the rights of the parents, has a responsibility to ensure that each child receives such minimum education. The Attorney General submitted that the focus of Article 42 and the School Attendance Act, 1926 was the unenumerated right of the child to have access to education of a moral, intellectual, physical and social nature. He submitted that there was a balance between the inalienable rights and duties of parents to provide the education and the rights and duties of the State to ensure that the education is suitable. It was submitted on behalf of the Attorney General that one of the unenumerated rights under the Constitution is the right of a child to receive an education in order for the child to live a fulfilling childhood and in order to assist that child's future development and integration into society. It was submitted that the decision of Geoghegan J that if no evidence had been available from the Inspector, the District Judge would have been bound to acquit, is not relevant. There was evidence available which was sufficient in order for the District Judge to exercise her judgment. On the ground of appeal, relating to the holding that the Respondent would have had a complete defence if it were not for the provisions of Article 42.3.2, Counsel for the Attorney General submitted that this finding of Geoghegan J was not relevant given the constitutional provision that the State, as guardian, has an obligation to require that the State's children receive a certain minimum education, moral, intellectual and social. On the ground of appeal relating to the drawing of an inference from the Inspector's report and findings of fact that the education provided by the parents was of such standard as was suitable, Counsel submitted that in light of the report of Dr O'Donnabhain, the children in question are not receiving the 'certain minimum education' referred to in Article 42.3.2. It was submitted that it is not necessary for the purposes of the case that a definition of "certain minimum education" be provided. All that is necessary is that a decision is made as to whether or not, in educational terms, the children are receiving a 'certain minimum education'. Counsel referred to Dr O'Donnabhain's opinion that the children are likely to be significantly and perhaps severely disadvantaged in their future educational life and submitted that the State has a responsibility and a duty under Article 42 to ensure that the rights of these children are vindicated. He submitted that the Inspector's report showed that the parents, though well-intentioned, are failing in their responsibilities to their children and accordingly, it was argued, the State is obliged to intervene in order to secure a "certain minimum education" and to vindicate the rights of the children. The final ground of appeal related to the inference and/or finding of fact that there is no necessity to include the Irish language as part of a suitable elementary education. In written submissions the Attorney General pointed to the disadvantages to the child if he/she is not taught Irish. Mr Murphy submitted that the District Judge should find the facts and come to a decision. He submitted that it is for the District Judge to determine the facts relating to the children, the family and the education being provided. All of the facts must be considered from the point of view of the child. He submitted that the Case Stated should be answered in the negative.

8.      Mr Sreenan, SC, for the Respondent, pointed to the difficulty that the case was not only about the Act but that the District Judge had to vindicate constitutional rights. In this Case Stated the District Judge was seeking guidance on the relevant laws, the interplay between the Act and the Constitution. He stated that the Learned High Court Judge was correct in his answer. The issue, he submitted, was clear; it was the relationship between the Constitution and the Act, between the terms "suitable elementary education" and a "certain minimum education". Of the constitutional words he submitted that the important characteristics were:

(a) that the education would be at home, by parents, according to their means, and

(b) regard must be had to actual conditions such as, on a broad plane, economic aspects and, on a microscopic level, the family, the area and the child.

9.      He submitted that the standard must not be set so high as to erode an important constitutional right.

Form of Case Stated

10.      The form of the Case Stated is unusual. It is more common to have a clear finding of facts followed by a question of law for the Court. However, in light of the nature of the case, a consultative Case Stated, and the relationship between the jurisdictions, it is appropriate to address the issue and answer the question posed by the District Judge. The words of Finlay, CJ in Dublin Corporation v Ashley [1986] IR 781 in relation to a consultative Case Stated from the Circuit Court to the Supreme Court are analogous.

11.      Finlay, CJ stated at p 785:

"The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and the relationship which exists between the two Courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court judge."

12.      I am satisfied that it is appropriate to follow a similar course in this case and to give an opinion on the issues of law.

Issues

13.      When this case was argued before the Court the issues had become more net than in the High Court or on the Notice of Appeal. Thus, for example, it was not suggested by any party that the study of Irish is mandatory or necessary in every case to achieve "a certain minimum education, moral, intellectual and social". It was accepted that each case must be considered on its own facts and circumstances. The issues before the Court were fundamental. They arose on the question asked as to whether the District Judge could pronounce a conviction in the case in the absence of a definition by the Oireachtas of a 'suitable elementary education' per s 4(2)(b) of the School Attendance Act and 1926 and in view of the relevant provisions of Article 42 of the Constitution of Ireland.

The Law

14.      The relevant law is to be found in statute law, the School Attendance Act, 1926 (hereinafter referred to as the Act) and in the Constitution. Section 4 of the Act sets out an obligation on the parent of every child to cause the child to attend school, unless there is a reasonable excuse as defined in s 4(2):-

"4.-(1) The parent of every child to whom this Act applies shall, unless there is a reasonable excuse for not so doing, cause the child to attend a national or other suitable school on every day on which such school is open for secular instruction and for such time on every such day as shall be prescribed or sanctioned by the Minister in respect of such day.

(2) Any of the following shall be a reasonable excuse for failure to comply with this section, that is to say:-

(a) that the child has been prevented from attending school by the sickness of the child;

(b) that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school;

(c) that there is not a national or other suitable school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child;

(d) that the child has been prevented from attending school by some other sufficient cause.

15.      Failure to comply renders the parent guilty of an offence in the terms of s 17 which states:

"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, and

(b) . . .

(c) . . .

(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 and shall be liable in the case of a first offence to a fine not exceeding twenty shillings and in the case of a second or subsequent offence (whether in relation to the same or another child) to a fine not exceeding forty shillings.

16.      Section 18 places the burden of proof of certain matters on the parents stating:

"(1) In any prosecution for an offence under this Act, the court before which the prosecution is brought may, on the application of the prosecutor or the person prosecuted or on its own motion, order the parent of the child to whom the prosecution relates to produce such child before the court at a specified time and place, and in the event of such parent failing so to produce such child the court may inflict on such parent a fine not exceeding twenty shillings.

(2) In any prosecution for an offence under this 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,

(c) that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school . . ."

17.      Article 42 of the Constitution of Ireland states:

"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.

(2) 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."

Onus of Proof

18.      A criminal prosecution is before the District Court and the onus is on the Director of Public Prosecution to prove the case beyond reasonable doubt. However, the Act has placed the onus of proving certain matters on the prosecuted parents.

19.      These are set out in s 18(2) as:-

"(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,

(c) that the child is receiving suitable elementary education in some-manner other than by attending a national or other suitable school."

20.      The issue of the burden of proof on the parents was not the kernel of this case. However, it appears to me on the face of the law that there is an onus on the parents and their burden of proof is the balance of probability. In this case the "excuse" offered by the Respondent was that the children were being educated at home. Thus, in my opinion, it was for her to prove on the balance of probabilities that the children are receiving suitable elementary education.

21.      This transfer of the burden of proof is appropriate given that the relevant matters are within the special knowledge of the parents. The State, as guardian of the common good, must protect the child's right to a certain minimum education and parents who choose not to avail of the State education system must prove that their children are receiving the required education. The question then is; what is the test for the District Judge to adopt in relation to the required education standard?

Key phrases

22.      Three terms at least have been used in considering the education of the children, and have caused difficulty for the District Judge. There is the statutory requirement of "suitable elementary education". There is the constitutional term of "a certain minimum education". And the District Court has also heard evidence of the primary school curriculum.

Statutory Standard

23.      The Act requires that the child "is receiving suitable elementary education". This has not been defined further in the Act or in any other legislation. It is not necessarily the primary school curriculum. It is a fact which must be determined by the District Judge on evidence presented before the Court. It must be determined in accordance with the Constitution.

The Constitution of Ireland

24.      Article 42 of the Constitution of Ireland sets out fundamental rights in regard to education. The relevant sections of the article, which have been set out in full previously in the judgment, were analysed in In re Art 26 of the Constitution and the School Attendance Bill, 1942 [1943] IR 334 at 344 where Sullivan CJ, stated:

"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."

25.      There has been no definition of "a certain minimum education" by the legislature since this decision. Thus, the judicial interpretation by Sullivan CJ, expressing the opinion of the Court that a "certain minimum education" indicates "a minimum standard of elementary education of general application" has continued to apply.

26.      Viz A viz the Primary School Curriculum

27.      The District Judge in the Case Stated states at paragraph 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 a viz the Primary School Curriculum of this State".

28.      The word "viz" is defined in the Concise Oxford Dictionary as:

". . . or by substitution (usually in introducing a gloss or explanation) namely; that is to say; in other words . . ."

29.      The words "vis-a-vis" are defined as:

"1. In relation to

2. Opposite to, facing one another . . .".

30.      I have construed paragraphs 5 as meaning that the District Judge has found as a matter of fact that the children were not in receipt of suitable elementary education of general application, that is to say they were not in receipt of education of the standard of the primary school curriculum of the State. This finding of fact is not conclusive of the facts to be found by the District Court.

Primary School Curriculum

31.      The primary school curriculum has been established to achieve a good primary school education. It is the education provided to children in national schools. The primary school curriculum may be used as a bench mark by the District Justice in analysing a home programme of tuition for children. However, it may not be used inflexibly as a test of what is 'suitable elementary education' construed in accordance with the constitutional concept of 'a certain minimum education'. The circumstances of each case must be considered carefully. In seeking' a certain minimum education' the District Court is not required to determine a universal, uniform education for all cases. Intellectual or social reasons may be relevant factors in individual cases. The primary school curriculum is part of the actual conditions in the community, the community's scheme of education, which may be considered by the District Judge. The District Judge should consider whether the education the children are receiving meets the requirements of the Constitution and the law bearing in mind the rights of the children as well as the rights of the parents.

Variations

32.      The Constitution is a living instrument and it must be construed as of its time and not as an historical document. What might be a certain minimum education standard in the 1940's may not be appropriate in the 1990's, which in turn may not be appropriate in 2040. Thus, the standard may vary according to the time in issue. The standard must be "a certain minimum education" for its time.

33.      There may be variations from family-to-family also. The Constitution acknowledges that the family is the primary educator of the child and guarantees to respect the inalienable right and duty of parents to provide "according to their means" for the education of their children. Thus, while the family is the primary and natural educator the Constitution specifically makes a factor of any decision making process the means of the parents. Obviously this will vary from family to family. However, it is not the only factor for consideration by the Court.

34.      There is a balancing of rights in construing the Constitution and its articles in relation to the education of children. Children have rights. The individual situation of children may be relevant and may vary. Thus, a child may be very intelligent or it may suffer disability. These may be relevant factors in assessing the circumstances which may vary from child to child.

35.      The geographical situation of a family may also be relevant in all the circumstances. This may include social matters and matters of method and educational content eg a family living on an island off Ireland. Obviously this may vary from area to area.

36.      The Constitution also requires that a factor in considering the circumstances be the 'actual conditions'. This relates to actual conditions in a wider sense, in the community. It is thus relevant to consider the situation in the community. Obviously these change from time to time. Reference has already been made to the primary school curriculum. Thus, both the micro situation -- that of the child, the family and its situation -- must be considered, while at the same time the actual situation must be analysed in light of the community which includes the general educational standards of the times. Thus, for example, the requirements of the community -- and conditions such as the prevalence of computers in schools and society -- -may be relevant factors.

37.      The Learned High Court Judge was concerned that District Judges throughout the country might form different views -- which would lead to uncertainty. However, I am satisfied that in this determination he was in error. The Constitution requires consideration of certain rights and duties in relation to the education of the child. Circumstances may vary from child to child. This is perhaps one of the reasons why neither the constitutional term "a certain minimum education" nor the statutory term "suitable elementary education" have yet been defined by the legislature.

District Judge

38.      In light of the nature of the rights in issue and the importance of issues such as family and perhaps locality, it is entirely appropriate that the District Judge of the area be called upon to make the important decision in the matter. The District Judge has to find facts. The District Judge will have to determine the issues in light of competing constitutional rights. Daily throughout the State District Judges make decisions where they protect constitutional rights of persons. This is so especially in criminal trials. In this particular type of case under the Act the most apparent persons and institutions with rights and duties are the parents, the family, the child and the common good.

The Parents

39.      The right of the parents is described as inalienable but it is also stated to be a duty. The inalienable right of parents to provide for their children's education is balanced with a duty. This duty must include a requirement to ensure that their child's personal potential is enhanced and not suppressed. Inherent in the right is the concept that a failure of duty impinges on the right. The particular position of each set of parents is recognised by the acknowledgement of their right and duty to provide according to their means. This right (and duty) may not be interpreted as requiring a costly education; such an approach would exclude many parents. However, it is not an absolute right of the parents. There is a parental duty and other parties have rights, such as the children, which must also be placed in the balance.

The Family

40.      The family is a fundamental unit group of the State recognised as such in the Constitution. The family is an institution larger than simply the parents. It transcends individuals. It has a special place in the education of children. The child is nourished, physically and mentally, by the family. The child has rights in relation to the family. The distinct place of the family in Irish society is a factor to be weighed in all relevant decisions.

The Child

41.      The child's right is not expressly stated in Article 42. However, jurisprudence in Ireland has acknowledged the rights of the child to include the right to be educated. In G v An Bord Uchtala [1980] IR 32 at 55, O'Higgins CJ stated, in relation to the constitutional rights of the child:

"The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State."

42.      The constitutional right of the child to receive primary education was considered in Crowley v Ireland IR 102 O'Higgins CJ stated at p 121:

"Article 42, s 4, of the Constitution lays down that "the State shall provide for free . . .".primary education These words impose an obligation on the State which is of general application to all citizens. Article 10 of the Constitution of the Irish Free State provided expressly for the citizen's rights rather than for the State's duty. That Article of the former Constitution stated:- "All citizens of the Irish Free State (Saorstat Eireann) have the right to free elementary education". However, the imposition of the duty under Article 42, s 4, of the Constitution creates a corresponding right in those in whose behalf it is imposed to receive what must be provided. In my view it cannot be doubted that citizens have the right to receive what it is the State's duty to provide for under Article 42, s 4 . . . In my view the effect of this part of Article 42, in accordance with the words used both in the Irish and in the English text, is to oblige the State to see that machinery exists under which and in accordance with which such education is in fact provided."

43.      The rights of the child under Article 42 were addressed in the High Court decision O'Donoghue v Minister for Health 2 IR 20, when O'Hanlon J, stated at p 65:

"I conclude, having regard to what has gone before, that there is a constitutional obligation imposed on the State by the provisions of Article 42, s 4 of the Constitution to provide for free basic elementary -- education of all children and that this involves giving each child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental and moral, however limited these capacities may be. Or, to borrow the language of the United Nations Convention and Resolution of the General Assembly -- 'such education as will be conducive to the child's achieving the fullest possible social integration and individual development; such education as will enable the child to develop his or her capabilities and skills to the maximum and will hasten the process of social integration and reintegration'".

44.      The right of the child as an unenumerated right was referred to in G v An Bord Uchtala [1980] IR 32 by Finlay P when he stated at p 44:

"In my view, her daughter likewise has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to her religious, moral, intellectual, physical and social welfare".

45.      In construing the Constitution it is clear that the child has rights as to education both as unspecified rights under Article 40.3.1 and under Article 42 which include the right of a child to receive education. However, the level of education for which provision must be made is another matter.

Common good

46.      The common good is evoked in Article 42. The State as guardian of the common good shall require (in view of actual conditions) that the children receive a certain minimum education, moral, intellectual and social. The actual conditions referred to in the Article must refer to conditions in the community, not only the family, otherwise personal situations would negate the common good. -- The personal situation of the parents has already been taken into account (per Article 42.1) in the requirement to consider parental rights and duties according to their means.

47.      The common good places the children's right to receive a certain minimum education, moral, intellectual and social as a priority. It does not require a high standard of education -- but it is a mandatory minimum standard. The standard is a question of fact, which must be decided in view of factors including actual conditions in the community and having regard to, inter alia, the physical and intellectual capacity of the children. The minimum education must be conductive to the child achieving intellectual and social development and not such as to place the child in a discriminatory position.

Decision

48.      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 Judge 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, whilst 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.

49.      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 Judge 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.

Answer

50.      Therefore, I would answer the question from the District Judge in the negative. The District Judge in view of her findings (when they are concluded) is not prevented in law from pronouncing a formal order of conviction in view of the fact that the Oireachtas has not to date defined in legislation what constitutes suitable elementary education as per s 4(2)(b) of the School Attendance Act, 1926 in view of the relevant provisions of Article 42 of the Constitution of Ireland.

Keane J:

Introduction

51.      This appeal arises out of a consultative Case Stated pursuant to s 52 of the Courts (Supplemental Provisions) Act 1961 by District Judge Mary O'Halloran sitting at Listowel, County Kerry. It was stated by her during the course of a prosecution brought against the defendant under the provisions of the School Attendance Act 1926 ("the Act").

52.      The respondent is a married woman, with three children, Niall, William, and Hazel. At the time of the prosecution in the District Court, their ages were 13, 11 and 8 respectively. It was not in dispute that all three of them had failed to attend school on the dates specified in the summons, but, for reasons which are not clear, the prosecution was brought in respect of the non-attendance of Niall and William only. When the case came before the District Judge, it was contended on behalf of the respondent that the children were being educated at home by her and she gave an indication of the contents of that education to the court. The hearing was then adjourned in order to enable an assessment to be carried out of the children's educational position.

53.      On the resumed hearing, Dr Padraigh O'Donnobhain, a District Inspector of the Department of Education and Science, gave evidence of an assessment carried out by him of the children's educational position and furnished a written report to the court, a copy of which is annexed to the Case Stated.

54.      Paragraphs 5 and 6 of the Case Stated are as follows:-

"(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 a 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.

55.      The opinion of the High Court is respectfully sought on the following question:-

Whether in view of my findings I am prevented in law from pronouncing a formal order of conviction in view of the fact that:-

(a) The Oireachtas has not to date defined in legislation what constitutes a suitable elementary education as per s 4(2)(b) School Attendance Act 1926.

(b) In view of the relevant provisions of Article 42 of Bunreacht na hEireann . . .'."

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 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 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.

2 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.

56.      In the course of his report, Dr O'Donnobhain said that the respondent had passed the O level examination in five subjects in England, completing school at age 17, and had no formal teaching qualification. The children's father did not sit formal examinations and took up employment at age 15. It was the respondent who principally looked after the children's education in the home.

57.      Dr O'Donnobhain, who said that the respondent and her husband were co-operative and helpful in enabling him to prepare a report for the court, gave a detailed account of the nature of the education the children were receiving. He then summarised his conclusions as follows:-

"6.1 Some provision is made for educating Niall, William and Hazel Best at home. This 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 every day 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."

58.      In the course of his judgment, the learned High Court judge quoted from a letter written by the respondent and her husband in reply to a warning sent to them by the gardai under the Act. That letter is not referred to in the Case Stated, but appears to have said that the respondent and her husband were dissatisfied with the nature of the education being provided for the children at the local national school and were also concerned when William whom, they said, had regularly been subject to bouts of bullying, began to show severe stress symptoms. They had then contacted a couple in Tralee who published a regular network newsletter for, what were described as, "hundreds of home educating families in Ireland". That in turn led to their deciding to educate the children at home themselves.

59.      Before considering the submissions of the parties, the relevant provisions of the Act and the judgment in the High Court should be summarised.

60.      The Act applies, by virtue of s 2, to children between the age of 6 and 14 and any other child to whom the Act applies by virtue of an order made by the Minister for Education and Science (hereinafter "the Minister"). The Act, accordingly, applied to the children in this case. Section 4, so far as material, provides that:-

"4.

(1) The parent of every child to whom this Act applies shall unless there is a reasonable excuse for not so doing, cause the child to attend a national or other suitable school on every day on which such school is open for secular instruction and for such time on every such day as shall be prescribed or sanctioned by the Minister in respect of such day.

(2) Any of the following shall be a reasonable excuse for failure to comply with this section, that is to say:-

(a) that the child has been prevented from attending school by the sickness of the child;

(b) that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school;

(c) that there is not a national or other suitable school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child;

(d) that the child has been prevented from attending school by some other sufficient cause."

61.      The remaining provisions of this section are not relevant to these proceedings.

62.      Section 17(1) of the Act provides for the serving of a warning on a parent who fails or neglects to cause his child to attend school in accordance with the Act, requiring him within one week after he is served with a warning either to cause the child to attend school or give the enforcing authority a reasonable excuse for not so doing. Subsection 2 provides that a person who does not comply with such a warning is guilty of an offence, unless he satisfies the court that he has used all reasonable efforts to cause the child to attend school. The prosecution in this case was brought under that subsection.

63.      Section 18(2) of the Act provides that:-

"In any prosecution for an offence under this 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,

(c) that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school."

64.      The case made on behalf of the respondent is that since the Oireachtas has not so far defined in legislation what constitutes a "suitable elementary education" within the meaning of s 4(2)(b) of the Act, the right of parents recognised by Article 42.2 of the Constitution to educate their children in their homes would be infringed by an enforcement system which could vary in different areas depending on the evidence of inspectors and the views of district judges as to what constitutes a "suitable elementary education". This, it was said, could result in the State requiring a standard of education which was in excess of the "minimum education, moral, intellectual and social" referred to in Article 42.3.2 . In particular, it was said that the State was not entitled to treat the primary school curriculum approved of by the Minister for Education as constituting the "certain minimum education" referred to in that subparagraph.

65.      That case was accepted by the learned High Court judge, who summed up his conclusions as follows:-

"In the absence of such legislative or other formal definition . . . 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.

"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."

66.      He also expressed the view that the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, was not essential to comply with the constitutional minimum.

67.      From that decision, the prosecutor now appeals to this court. As a question arose in the case as to the interpretation of the Constitution, the court directed that notice should be served upon the Attorney General and, on the hearing of the appeal, heard submissions on his behalf in addition to submissions on behalf of the prosecutor and the respondent.

Submissions of the Parties

68.      On behalf of the prosecutor, Mr Maurice Gaffney, SC submitted that, since the District Judge had found as a fact that the respondent had failed to comply with a warning served on her pursuant to s 17(1) of the Act and that the only excuse put forward under s 4(2) was that the children were receiving suitable elementary education at home, the sole issue remaining to be determined by her was whether in fact the children were receiving such education. He said that it was clear from the terms of s 1 8(2)(b) that the burden of proof that the children were receiving such suitable elementary education rested on the respondent. It was for the District Judge to determine whether, in the light of the evidence of the inspector and any other relevant evidence adduced at the hearing, the respondent had discharged that burden of proof. The learned High Court judge had, accordingly, erred in law in concluding that the 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.

69.      Mr Gaffney submitted that, in determining whether the respondent had discharged the onus of proving that the children were receiving suitable elementary education, the District Judge was entitled to take into account whether the parent concerned had any experience in educating children and, if he or she had not, what steps she had taken to acquire the necessary teaching skills. The judge could also take into account whether the parent had received advice from persons experienced or specialised in the area of home education. He said that parents who exercised their undoubted constitutional right to provide education for their children in their homes undertook a serious burden in ensuring that the children received the minimum education which was their constitutional entitlement.

70.      Mr Gaffney accepted that, while the constitutionality of the Act was not challenged in these proceedings, its provisions could not be interpreted in a manner which was inconsistent with Article 42 of the Constitution. Both the Act and the Constitution, while requiring that children should in all circumstances receive a certain minimum education, did not specify in any detail what that standard should be. It was not contended on behalf of the State that the fact that education provided in the home did not accord with the primary school curriculum approved by the Minister of itself meant that the children were not receiving a suitable elementary education. The issue in every case where a prosecution was brought under the 1926 Act and the excuse for non-attendance was that the children were being educated at home was whether, in view of the actual conditions prevailing, a suitable form of elementary education was being provided which reached the constitutional minimum.

71.      On behalf of the Attorney General, Mr Roderick Murphy, SC adopted the submissions of Mr Gaffney. He further submitted that, in construing Article 42 of the Constitution, it should be borne in mind that, while the Article recognised the family as the primary and natural educator of children, it also was intended to safeguard the constitutional right of the child to receive a certain minimum education and he referred in this context to G v An Bord Uchtala [1980] IR 32 Crowley v Ireland [1980] IR 102 and the judgment of O'Hanlon J in O'Donoghue v Minister for Health.

72.      Mr Murphy said that it was not contended on behalf of the Attorney General that the present primary school national curriculum constituted "the certain minimum education" required by Article 42.3.2: the standard laid down by that curriculum was above the constitutional minimum. He further submitted that the concept of what constituted a suitable education was one which did not remain static and it was, accordingly, difficult to embody the appropriate standard in legislation. This was recognised by Article 42.3.2 which made it clear that the "certain minimum education" to which all children were to be entitled was to be related to "actual conditions

73.      On behalf of the respondent, Mr Paul Sreenan, SC said that the District Judge had sought guidance from the High Court as to the interpretation of both the Act and the Constitution. While she had found as a fact that the children were not receiving suitable elementary education "of general application", she had reached that conclusion by applying the criteria of the primary school curriculum. He said that it had been conceded, somewhat belatedly, on behalf of the prosecutor that the "certain minimum education" referred to in Article 42.3.20 could not be equated to the primary school curriculum and he submitted that it followed from that concession that a parent, such as the respondent, who was exercising her constitutional right to educate her children in the home according to her means and was doing her best to ensure that they received a certain minimum education could not be treated as a criminal by invoking the provisions of the Act. That would necessarily involve a parent, such as the respondent, being convicted because of the subjective view formed by a particular district judge as to what constituted a "suitable elementary education" or "certain minimum education".

74.      Mr Sreenan further submitted that the whole tenor of Article 42 was, while recognising the right of children to a certain minimum education, to preserve in emphatic language parental freedom of choice in the field of education, including their right to provide education in the home. He said that the decision of the former Supreme Court in In re: Article 26 and the School Attendance Bill 1942 [1943] IR 334 made it clear that the "certain minimum education" referred to in Article 42.3.2 could be defined by legislation, provided it did not contravene any other provision of the Constitution and did no more than prescribe what could be regarded as a minimum standard of elementary education of general application. The State having failed to lay down any such standard of general application, it followed that a parent could not be deprived of her right to educate her child at home because of the subjective view of an inspector or a district judge as to what might constitute such a standard. He further submitted that in the same decision the court had made it clear that, so long as parents supplied that minimum standard of education, the manner in which it was being given and received was entirely a matter for the parents and that, in the present case, given the contents of the inspector's report, it was obvious that it was not simply the content, but also the manner in which the education was being imparted, which was being treated as falling short of the constitutional standard. That application of the Act was not, he submitted, permitted by Article 42.3.2 of the Constitution.

Conclusions

75.      The sole issue raised by this Case Stated is as to whether the District Judge is precluded from convicting the respondent because the Oireachtas has not defined in legislation what constitutes a suitable elementary education for the purpose of s 18(2)(c) of the Act. It is not in dispute that the respondent and her husband are entitled by virtue of Article 42.2 of the Constitution to provide the education, which it is their right and duty to provide for their children under Article 42.1, in their home, if that is their choice. The Act, it is clear, may be interpreted and applied only in a manner which respects that constitutionally guaranteed right.

76.      It is also not in dispute, however, that the Act must also be interpreted and applied so as to vindicate and uphold the constitutional rights of the children, specifically in the context of this case, their right under Article 42.3 .2 to:-

". . . receive a certain minimum education, moral, intellectual and social."

77.      The obligation thus imposed on the State, could, in theory at least, be met by legislation which not merely ensured the reception by children of a "suitable elementary education", as did the Act, but also by elaborating, in whatever degree of detail was considered appropriate, what the minimum ingredients of such a suitable elementary education were.

78.      In the case of parents who send their children to a national school or other "suitable school" certified to be such by the Minister under s 5 of the Act, the question will not arise as to whether the children are receiving a "suitable elementary education" within the meaning of the Act, since they fulfil their obligations under the Act by sending their children to such schools. That does not mean, however, that the Minister, in extending recognition to schools, whether national schools or private schools, is relieved of the constitutional obligation imposed on the State to ensure that the children attending such schools receive the minimum education to which they are entitled under Article 42.3.2 . On the contrary, the Minister in approving the form of education being given in those schools, and, for that purpose, inter alia preparing and revising from time to time, as circumstances appear to him or her to require, the primary school curriculum, is clearly under a constitutional duty to ensure that the children receive that minimum standard of education. The Oireachtas, however, have decided that the interests of children, parents and teachers are better served by not embodying the relevant standards in legislation but leaving them to be determined by an extra statutory administrative scheme from time to time, as circumstances change. Similarly, in the case of those parents who exercise their constitutional right to educate their children at home, the Oireachtas has not sought to define any further what is meant by a "suitable elementary education" but has left it to the District Court to determine in any particular case whether such an education is being given to the children at home. Those were choices which, in my view, it was entirely within the competence of the Oireachtas to make.

79.      If, however, the case advanced on behalf of the respondent is well founded, it would inevitably follow that the result of their having made such a choice is that the Act is virtually inoperable in the case of children receiving their education at home because, it is said, it would not be fair to parents to convict them of a criminal offence where they have no guidance as to the appropriate standard. The logical consequence of the arguments on behalf of the respondent is that the Oireachtas has in fact no choice and must set out the standard referred to in Article 42.3.2 in legislation.

80.      That is not, however, what Article 42.3.2 says. Giving the judgment of the former Supreme Court in In re Article 26 and the School Attendance Bill 1942 Sullivan CJ said:-

"It must . . . 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 under the Constitution."

81.      The learned Chief Justice was not there saying that the Oireachtas were obliged by virtue of Article 42.3.2 to define a "certain minimum education" in legislation. He was saying no more than that it was within the competence of the Oireachtas so to do, provided the standard contemplated by the Constitution was not exceeded.

82.      As to the question of Irish being including in any curriculum or system of home education, it would be going too far to say that its absence would, of itself, mean that the constitutional standard had not been reached, since that standard is to be determined in view of "actual conditions". [It appears from an Article by Professor WN Osborough, Education in the Irish Law and Constitution [1978] 13 Ir Jur [ns] 145) that it was the concern of the then Government that parents might have their children educated in schools either here, in Northern Ireland or elsewhere which did not include Irish in the curriculum which inspired the contentious provision in the 1942 Bill.] But given the status of Irish as the first official language and the fact that a knowledge of it is a precondition to at least some forms of employment, it could not be said that its absence from a curriculum cannot be taken into account in determining whether the education of the child reaches the constitutional standard.

83.      When the District Judge is giving her decision in the present case, she will, of course, be doing so in the light of the evidence tendered to her, including that of the respondent and the inspector, as to the nature of the education being given to the children. But, as in any other case, she will also be in a position to bring to bear on the decision her experience of the world and her common sense. The fact that the Oireachtas has not embodied the minimum constitutional standard in legislation will not in any way prevent her, in my view, from arriving at a fair and objective decision in the case.

84.      That finding provides a sufficient basis for answering the question posed in the Case Stated. However, in view of the sparseness of reported decisions on the relevant provisions of the Act, some additional comments may be of assistance to the District Judge.

85.      The issue which has to be determined in cases of this nature is whether the children are receiving "suitable elementary education" at home. As Lynch J points out in his judgment, the onus of proof is on the respondents and is to be determined on the balance of probabilities. The standard of education provided in the local national school which these children had at one stage been attending is of no relevance in determining that issue. Parents are, of course, entitled to withdraw their children from a national school, or any other school, if they are dissatisfied with the education being there provided or with any other features of the school, whether that dissatisfaction is justified or not. But where, as in this case, they elect to provide the children with the suitable elementary education to which they are entitled in their home, they assume the burden of satisfying the District Judge that such education is in fact being provided. It must be emphasised that it is nowhere stated in the Act that the inadequacy of the education being provided in schools, whether national or private, if indeed it is inadequate, constitutes a "reasonable excuse" for not causing the children to attend a national or private school recognised or approved by the Minister for the purposes of the Act.

86.      It is necessary to emphasise again that the phrase "suitable elementary education" is not to be interpreted so as to require the giving of an education which exceeds the "certain minimum education, moral, intellectual and social" referred to in Article 42.3.2. So interpreted, it would certainly require the education of the children, in intellectual terms, to a basic level of literacy and numeracy. But since the standard is to be determined in the light of "actual conditions" -- and, for that matter, "suitable" must also be similarly construed -- the minimum education to which the children are entitled may, in today's world, require more than those basic constituents. It is also to be noted that the minimum education is not necessarily to be equated to the present primary school curriculum which, it was said on behalf of the prosecutor and the Attorney General, was above the constitutional minimum.

87.      It is undoubtedly desirable that the minimum standard of elementary education which it is the policy of the Act to ensure that all children receive should be a standard of general application. However, the right of children recognised by Article 42.3.2 is to "receive" the certain minimum education. It follows that those providing the education, whether they be schools or parents, must ensure that it is designed to meet the needs of, and develop to the fullest possible extent the capacities of, the particular children concerned. Thus, while it does not arise in this case, it can be readily envisaged that children with some degree of learning difficulties may be entitled to a form of education which takes account of those difficulties.

88.      That brings me to one final matter. It would appear from the report of the Inspector that he was not satisfied with the teaching methods being employed by the respondent and that it was not simply the subject matter which gave him concern. Mr Sreenan, in submitting that such an approach was not consistent with Article 42.2.30, relied on the following passage in the judgment of O'Sullivan CJ in In re Article 26 and the School Attendance Bill 1942:-

"We are of opinion that the section is open to objection from a constitutional point of view in one other respect. Under sub-section 1, not only the education, but also the manner in which such child is receiving i must be certified by the Minister. We do not consider that this is warranted by the Constitution. The State is entitled to require that children shall receive a certain minimum education. So long as parents supply this general standard of education we are of opinion that the manner in which it is being given and received is entirely a matter for the parents and is not a matter in respect of which the State under the Constitution is entitled to interfere." --

89.      Dicta in other cases would appear to support the view that the High Court and this court are bound by the ratio decidendi of judgments arising from a reference to the court under Article 26: see in particular the observations of Henchy J in The State (Lynch) v Cooney, [1982] IR 337). But that, of course, is, in the case of this court, subject to the power of the court, as a court of final appeal, to depart from the ratio where it is wrong in law, first established as a legal principle in Attorney General v Ryan's Car Hire Limited. ([1965] IR 642). However, as was pointed out in Mogul of Ireland Limited v Tipperary (NW County Council [1976] IR 260), the court must be clearly of opinion that the earlier decision was erroneous before invoking that power and, undoubtedly, a significant degree of judicial restraint must always be exercised in this area.

90.      That having been said, it seems to me that the view of the court in that case that the State is not in any way entitled to interfere in the manner in which education is being given to children rests on an unduly narrow construction of Article 42.2.30 and should not now be followed. It would seem to me that the right of the child to be educated, given such emphasis in the decisions in G v An Bord Uchtala, Crowley v Ireland and O'Donoghue v Minister for Health would be seriously violated if the State could not intervene, although satisfied that teaching methods were patently inadequate, simply because the curriculum purported to be taught approximated, for example, to the primary school curriculum.

91.      It is in any event almost beyond argument that the ratio decidendi of In Re Article 26 and the School Attendance Bill 1942 is, in another and vital respect, irreconcilable with decisions of this court. Addressing the powers of the Minister which were impugned in that case, O'Sullivan CJ said:-

"Section 4 of the Bill deals with the granting of certificates by the Minister certifying that children are receiving suitable education otherwise than by attending school. We must construe that section as we find it and try to ascertain its meaning and effect. We assume that the powers conferred upon the Minister by the section if passed into law will be exercised in a reasonable, conscientious and temperate manner. But, making this assumption, we are nevertheless of opinion that a Minister, construing the section in a reasonable manner, might require a higher standard of education than could be properly prescribed as a minimum standard under Article 42.3.2 of the Constitution."

92.      However, this court in East Donegal Co-operative v Attorney General ([1970] IR 317) held that the presumption of constitutionality carried with it the presumption that the Oireachtas intended that "proceedings, procedures, discretions and adjudications" provided for by an Act of the Oireachtas are to be conducted in accordance with the principles of "constitutional justice". It was added that any departure from those principles would be restrained and corrected by the courts. The School Attendance Bill 1942 being entitled to the presumption of constitutionality, it would seem to follow that it was to be presumed that the Minister would exercise his powers in accordance with Article 42.3.2 and that, if he did not do so, his failure would be corrected by the courts.

93.      In Mogul of Ireland Limited v Tipperary (KR) County Council, Henchy J said:-

"Even if the later court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit fus applies."

94.      That caveat has no application to the decision under consideration, since the impugned measure, as a result of the court's decision, never became law. On the contrary, to perpetuate what appears clearly to be an erroneous view of the law would, in my view, be to perpetuate injustice to the children affected by legislation of this nature.

95.      I would allow the appeal and substitute for the order of the High Court an order that the question in the Case Stated be answered in the negative.

96.      Murphy J: The parent of every child who is between the age of 6 and 14 years was required by s 4 of the School Attendance Act, 1926 to cause such child to attend a national or other suitable school on every day on which such school is open for secular instruction "unless there is a reasonable excuse for not so doing". What constitutes "a reasonable excuse" is expressed in that section to include the reason following:-

"that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school."

97.      The Respondent, Christine Best, was prosecuted under the provisions of the School Attendance Act, 1926 because of her admitted failure to cause her children Neil and William to attend such national or other suitable school. Mrs Best relied upon the statutory defence a I ready quoted, namely, that the children concerned were receiving a suitable elementary education in a manner other than by attending a national or other suitable school.

98.      In those circumstances, I am satisfied that the principles following are applicable, namely:

1 That the onus lies on the Respondent to make out the statutory defence by adducing appropriate evidence as to the education of which the children are in receipt.

2 That the evidential burden imposed on the Respondent in making that defence is the "balance of probabilities" test.

3 That the burden falls on the Judge of the District Court to determine whether or not the statutory defence has been established to that standard of proof.

4 That the words "suitable elementary education" may not involve an educational standard or requirement in excess of that imposed on the State by the direction contained in Article 42(3) of the Constitution which requires that children shall receive "a certain minimum education, moral, intellectual and social".

99.      The statement of these principles is sufficient, I believe, to answer the questions raised in the case stated herein in the manner indicated in the judgments already delivered. However, the application of those principles to the facts of a particular case would require an analysis of, first, the constitutional provisions in relation to education and, secondly, the legislative requirements of the School Attendance Acts, 1926-1967.

100.      Article 42(3)(2) must be construed in the context of the Constitution as a whole including, as has been recognised so frequently, the Preamble thereto. Whilst the language of the Constitution evokes the rhetoric of the political reformers of the 18th Century and the "fundamental rights" provisions, in particular, repeat many of the phrases contained in the 'Declaration of the Rights of Man" passed by the National Assembly of France on the 26 August 1789, the political philosophy of our Constitution owes infinitely more to Thomas Aquinas than Thomas Paine. In his contribution to "The Constitution of Ireland 1937/1987" (edited by Frank Litton) Mr Justice Walsh said (at page 94):-

"While St Thomas Aquinas claimed that natural law was that part of the law of God which was discovered by human reason, others claimed that natural law did not depend upon the existence of God but was simply the dictate of right reason. Yet what was important was that its existence was accepted and with it, inevitably, the concept of human rights. In the view of many people, the influence of scholastic philosophy on the history of natural law was decisive in the European tradition and St Thomas Aquinas was the great exponent of this philosophy.

101.      It can be correctly asserted that the Constitution of Ireland has opted for the theological origin of natural law."

102.      Certainly, the opening lines of the Preamble to the Constitution expressly recognise that all actions both of men and States must be referred to God as "our final end" and the penultimate paragraph of the Preamble explains that the purpose of adopting the Constitution is:-

". . . to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations."

103.      Having so identified the purposes to be achieved, the teleological approach (for long the preserve of the scholastic philosophers and more recently favoured as an instrument in the interpretation of the Treaty of Rome) can assist in interpreting the detailed provisions of the Constitution and in particular the fundamental rights thereby declared or recognised. The crucial paragraph of the Constitution in relation to this case is contained in Article 42(3)(2) but this must be read first in the context of the special recognition accorded to "the family" by Article 41(1)(1) as follows:-

104.      The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and inprescriptable rights, antecedent and superior to all positive law."

105.      More particularly, in relation to education generally Article 42.1 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."

106.      Sub-article 2 of Article 42 emphasises the range of choice available to parents in the following terms:-

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

107.      In these terms Article 42(1) and (2) recognises that it is for parents to educate their children. This provision is not based on any proprietary right of the parents or functional analysis of the educational process. It is grounded on the acceptance of the belief that it is the moral right and duty of parents to educate children and that by exercising that and the other fundamental rights referred to in the Constitution the goals identified in the Preamble may be achieved. The introduction of those explicit and extensive provisions in the 1937 Constitution were important in their time even if that was not immediately recognised. They were in marked contrast to the pernicious doctrines then gaining widespread support in continental Europe whereby the role of the individual was subservient to that of the State. In fairness, it must be recognised that the Irish constitutional provisions in relation to education were equally at odds with the more respected views propounded by Aristotle in his Politics where he advocated a system of education in which:-

'The citizen should be moulded to suit the form of government under which he lives."

108.      In a leading case on education, Meyer v Nebraska US 262, 390 Mr Justice McReynolds identified and commented upon Plato's equally State-dominated concept of education in the following terms:-

"For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: "That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child nor any child his parent. The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be". In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution."

109.      The particular provisions of Article 41(1) and (2) are unqualified in their scope. The right (and duty) is not limited or regulated "by the principles of social justice" as is the case of private property nor controlled "in the public interest" as is the case with so many personal rights identified in Article 40. Indeed, the natural right to the private ownership of external goods recognised in Article 43 is a logical inference from the duty cast on parents to educate and otherwise provide for their children. If property rights could be abolished the fundamental right to educate could not be sustained.

110.      Article 42(1) and (2) are important and far-reaching fundamental provisions, the effect of which was summarised (again by Walsh J) in G v An Bord Uchtala [1980] IR 32 at page 79 in the following terms:-

"In Article 42, 5.1, of the Constitution the State recognises that the family itself is the primary and natural educator of the child, but it goes on to say that the State guarantees to respect the inalienable right and duty of parents to provide in accordance with their means for the religious and moral, intellectual, physical and social education of their children. Therefore, such education is regarded both as a right and a duty of the parents; correlatively, it is the right of the children to look to their parents and family for the fulfilment of their duty to supply, arrange for, or provide that education."

111.      In the circumstances, one may say that, at the least, the role of the State in relation to education is subordinate to that of the parents. Parents may not abdicate their role and the State may not usurp it. The area of State competence in education -- that the State can and must under Article 42(4) "provide for free primary education" -- is clear but of course this provision does not entitle the State to insist that parents must avail of the education provided. Such an insistence would be in direct contravention of Article 42(1). The role of the State in the field of education is also circumscribed by Article 42(5) which provides:-

"In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

112.      This admittedly "exceptional case" applies where the failure of the parents to perform their constitutional duties to their children is due to "physical or moral" reasons and is of no application where the failure is due to the financial circumstances of the parents or a difference of opinion as to what an appropriate method or standard of education might be.

113.      The only authorisation for interference by the State in a case such as the present is to be found in Article 42(3)(2) which provides as follows:-

"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."

114.      Unlike sub-article (5), this is not a default provision. It is applicable in every case. The State is bound in its capacity as guardian of the common good to require that all children receive a certain minimum education, moral, intellectual and social". Clearly, the areas of education in which the State is required to participate are more restricted than those with which parents are concerned. The State's brief does not extend to either religious or physical education. More particularly, the parents' duty (and the corresponding right of the child) is not limited. The parental duty could encompass full secondary and third level education if this is within their means. Again, the use of the word "certain" is clearly used in the sense of meaning "some at least" rather than a fixed or definite subject matter. However, it is the expression "as guardian of the common good" as used in this particular paragraph which may cause the greatest difficulty. Of this expression, Mr Justice Walsh in an article entitled 'Existence and Meaning of Fundamental Rights in the Field of Education in Ireland' in (1981) Human Rights Law Journal 319 (at 327) said:-

"As already indicated, Article 42 enables the State, as guardian of the common good, to require that children receive a certain minimum moral, intellectual and social education. In other areas of the Constitution where the common good is referred to it is clear that the Constitution, while acknowledging the higher status of individual values, does not preclude the application of the guiding principle that gives priority to the common good over the individual interest and recognises that private interest must surrender to the common good in particular fields. However, if the common good is to be understood principally as the satisfaction (insofar as possible) of the greatest proportion of interests of all persons with the least sacrifice, the least friction, and the least waste, there should be no incompatibility. However, there has not yet been sufficient litigation on the question of what is the common good, or who determines it, to give any reasonable forecast of what may lie ahead in the interpretation of "the common good" in the field of education."

115.      In those circumstances and in the absence of the detailed argument (which will only arise on a constitutional challenge based on the particular provision) I can only express my own tentative view that the common good as referred to in Article 42(3)(2) is the interest of the community -- rather than the particular individual -- in having a population which is educated to a standard which would be recognised throughout the country as the minimum needed to function in a civilised society. It might be described as the lowest common denominator in educational standards. The moral, intellectual and social education which the State may require under Article 42(3)(2) is something which Article 42(2) recognises parents could provide in their homes. It is understandable that a moral education could be so provided but one might have thought that the social input would require the type of intercourse or relationships which would develop with other children in a school environment. That cannot be so. The Supreme Court on the reference to it of the School Attendance Bill, 1942 IR 334 established two important propositions which are relevant to the present case. First, the Court held that the "certain minimum education " referred to in the Article "indicates a minimum standard of elementary education of general application" (emphasis added) and secondly, that "the manner in which [education] is being given and received is entirely a matter for the parents and is not a matter in respect of which the State under the Constitution is entitled to interfere

116.      Of what then does this "minimum standard of elementary education of general application" consist? As Mr Justice Kenny pointed out in the High Court in Ryan v The Attorney General [1965] IR 294 (at 310) the education referred to in the Constitution was such that it could be provided in schools and must therefore be given a limited interpretation extending only to education of a scholastic nature. Since the State cannot dictate the method or manner of education it would seem to follow that it is the only subject matter in relation to which the State may prescribe minimum standards. The fact that these are standards of "general application" suggests, as I say, a very modest standard indeed.

117.      Throughout much of the 19th Century the national school system was criticised by the Established Church, condemned in principle by the Catholic Church and later excoriated by the distinguished patriot and educationalist, Padraig Pearse, in his intensely critical pamphlet entitled "The Murder Machine". Nevertheless, objective research would appear to show that the system did achieve considerable success in expanding the rudiments of knowledge in what was an impoverished society. It was the Irish Education Act, 1892 that established the scheme of compulsory education of children which was extended and reinforced by the School Attendance Act, 1926. The 1892 Act had exempted from compulsory education a child over the age of 11 years (and under 14 years) who had received a certificate of "his proficiency in reading, writing, and elementary arithmetic ". This was the standard of education traditionally referred to as "the 3 R's" -- reading, 'riting and 'rithmetic. If this seems an unambitious curriculum it may be well to recall that it is remarkably similar to that provided in Aristotle's Lyceum where the syllabus for young boys was summarised thus:-

"From age seven to puberty, his curriculum would include the fundamentals of gymnastics, music, reading, writing and enumeration."

118.      While the words "in view of actual conditions" in Article 42(3)(2) require the rudiments of education to be updated from time to time it seems that basic education moves slowly. In the 2500 years that passed from the time when Aristotle identified the educational requirements for the elite of Athens and the Board of Commissioners for National Education prescribed the suitable elementary-standard for children in Ireland little seems to have changed.

119.      Insofar as it falls to me to do so I would conclude that the expression "a certain minimum education, moral, intellectual and social" used in Article 42(3)(2) indicates a very basic standard indeed. The underlying objective is to provide young people with a basic education so that they can communicate orally and in writing within society and record, organise and deal with ordinary social and business matters involving communication, enumeration and arithmetic. The common good also requires that children should be encouraged to develop a sense of responsibility and the capacity to live within a civilised society.

120.      It is within the parameters of that modest standard that the expression "a suitable elementary education" must be interpreted. Whether a child is receiving a suitable elementary education can be tested in one or other of two ways. First, the learned Judge of the District Court can arrange to interview the child and hopefully satisfy herself that the proficiency of the child in the core subjects to which I referred is such that he or she must be in receipt of a suitable elementary education. Alternatively, the learned Judge may be satisfied by the evidence of the parents -- supported where necessary by evidence of experts -- that the course of education being pursued in the home is such that, having regard to its manner, duration and subject matter, it may be considered in all of the circumstances "a suitable elementary education

121.      I regret that I should find myself in disagreement with my colleagues on a matter in respect of which my preference would be to give clear and unambiguous guidance to the Judge of the District Court who has been presented with a difficult task. It may be some comfort for her to recall that the educational system which she is called upon to apply owes much to the sustained interest therein of that great jurist the Chief Baron Palles.

122.      Lynch J: I am in agreement with the judgments already delivered or about to be delivered by the other members of the court that the question posed in the Case Stated should be answered in the negative.

123.      I wish to add some observations of my own.

124.      Article 42 of the Constitution dealing with "education" appears to lay most emphasis on the rights of the parents. However, rights almost invariably connote corresponding duties. Section 1 of Article 42 levels out the emphasis to some extent by referring to "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". So also does s 5 of Article 42 which refers to the "natural and imprescriptible rights of the child".

125.      The courts in more recent times have come, and correctly so, to lay more emphasis on the rights of the child. See the cases already referred to in the judgments delivered by other members of the court, namely:-

G v An Bord Uchtala [1980] IR 32

Crowley v Ireland [1980] IR 102 and

O'Donoghue v The Minister for Health [1996] IR 20 O'Hanlon J

126.      Children have a right to have their talents developed by "such education as will be conducive to the child's achieving the fullest possible social integration and individual development; such education as will enable the child to develop his or her capabilities and skills to the maximum and will hasten the process of social integration and reintegration". To quote from O'Hanlon J in O'Donoghue v The Minister for Health.

127.      Children are citizens and persons within the meaning of those terms as used in the Constitution and the law. They have added rights given to them by the Constitution and by law for their well being and protection during infancy. The persons primarily responsible for ensuring their well being and protection during infancy are their parents. As part of their well being and protection children are entitled to, and parents are under an obligation to provide within their means for, an education to qualify their children for such reasonable standard of life as adults as is clearly within their competence if given appropriate education.

128.      In these circumstances the primary school curriculum might well amount to no more than "suitable elementary education of a general nature and/or a certain minimum education, moral, intellectual and social" in the case of a bright child well capable of coping with and benefiting from the primary school curriculum. In such a case the parents would be quite entitled, if they could afford it, to "provide" such education in their home by engaging and paying qualified teachers. It seems most unlikely, however, that the parents in the present case could "provide" suitable education and/or a certain minimum education by undertaking the task of tuition themselves, having regard to their own limited educational history and lack of qualifications. If either of the boys the subject matter of this prosecution is bright enough to be well capable of coping with and benefiting from the primary school curriculum, it is clear and has been so found by the District Judge that the parents are not providing an education which is equal to or comparable with the primary school curriculum. That standard, in the case of an intellectually bright and physically sound and healthy child, might be held by the District Judge to equate with "suitable elementary education of a general nature and/or a certain minimum education, moral, intellectual and social".

129.      In my view the District Judge should now proceed as follows:-

1. She should make findings as to whether or not the education being provided in the home by the defendants is suitable elementary education of a general nature and/or a certain minimum education, moral, intellectual and social in the case of each of the boys the subject matter of the prosecution.

2. The onus of establishing that the education being provided by the parent in the home is suitable elementary education and/or a certain minimum education rests on the defendant in the case of each of the boys.

3. The standard of proof required of the defendant is the balance of probabilities.

4. If the District Judge is satisfied on the balance of probabilities that such education as is being provided in the home in the case of each boy is suitable elementary education of a general nature and/or a certain minimum education, then she should acquit in the case of each such boy.

5. If the District Judge is not satisfied on the balance of probabilities that such education as is being provided in the home in the case of each of the boys is suitable elementary education and/or certain minimum education she should convict in relation to either or both of the boys as the case may be.

130.      Barron J: The respondent is a married woman living in Co Kerry. She and her husband are the parents of three children: Niall, born on the 11 October 1984; William, born on the 25 May, 1986; and Hazel, born on the 29 September, 1989. Until the month of November, 1996 when they were withdrawn from school each of the children attended Dromclough national school. Niall was in 5th class, William in 4th class and Hazel in 2nd class.

131.      The parents were dissatisfied with the education which the children were receiving at school for a number of reasons. Each of the three children was taken out of school in November, 1996. As a result, the respondent was prosecuted under the provisions of the School Attendance Act, 1926 in respect of the non-attendance of Niall and William. No such prosecution was instituted in relation to the non-attendance of Hazel, perhaps because of her relatively young age.

132.      The reasons for taking the children out of school were subsequently expressed in a letter to the Department of Education and Science as:

(a) the attitude of the school authorities to parental involvement in the running of the school;

(b) William began to show severe stress symptoms; and

(c) Hazel lost interest and fell behind.

133.      In the same letter to the Department the parents set out as follows their view of how the children were progressing:

"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 Metalwork. 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.

134.      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.

135.      We are very pleased with the way things are working out. The children are much happier, we feel much more involved in their educational 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."

136.      When the prosecution came before the District Court the respondent gave evidence in accordance with the terms of this letter. Having indicated that she would welcome an assessment of the children's educational position the hearing was adjourned to enable such an assessment to take place. It was carried out on the 21 October, 1997, by Dr Paidraigh O Donnabhain, a district inspector of the Department of Education and Science.

137.      The hearing resumed on the 27 January, 1998, when Dr O Donnabhain gave evidence in line with a report which was handed into the Court. This was a well-balanced report in which he accepted largely the facts though he was not as optimistic as the respondent in relation to the knowledge of her two sons. His conclusion was as follows:

"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.

138.      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.

139.      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."

140.      Having heard this evidence the learned district judge stated a case for the opinion of this Court. She found:

"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 vis-a-vis the primary school curriculum of this State."

141.      She then stated the following question for the opinion of the High Court:

"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

(a) the Oireachtas has not to-date defined in legislation what constitutes a suitable elementary education as per section (4)(2)(b) School Attendance Act, 1926.

(b) In view of the relevant provisions of Article 42 of Bunreacht na hEireann

142.      The matter came before Geoghegan J in the High Court who answered the question as follows:

"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."

143.      The prosecutor being dissatisfied with such answer has appealed to this Court.

144.      The relevant constitutional and statutory provisions have already been set out in the judgments which have been delivered.

145.      As a matter of law the respondent must establish that the education which her two children Niall and William are receiving at home is a suitable elementary education.

146.      What is suitable is a question of law. The obligation of the parent in the absence of reasonable excuse is to cause the child to attend a national or other suitable school: section 4(1) of the 1926 Act. By definition a "national school" is one recognised by the Minister and "suitable school"' is one certified by the Minister as being suitable. It is an excuse for not sending the child to a national or other suitable school that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school; section 4(2)(b) of the 1926 Act.

147.      The second use of the word "suitable" suggests that the elementary education being provided should be capable of being certified by the Minister as being suitable. Such an approach, however, would be inappropriate since the Minister would be bound by the Constitution -- Article 42.3.2 -- which requires that children should receive a certain minimum education, moral, intellectual and social. Accordingly in determining what is a suitable elementary education it must meet the requirement of a certain minimum. If it was to be construed as requiring a lesser standard, then the provisions of Article 42.3.2 which must be regarded as being included for the benefit of the child would be infringed. Likewise, if it was to be construed as requiring a higher standard, it would infringe the right of the parent to educate the child at home, the only limitation upon which is contained in Article 42.3.2.

148.      Section 4(2)(b) of the Act should be regarded as the exercise by the State as guardian of the common good of its power to require in view of actual conditions that children receive a certain minimum education, moral, intellectual and social.

149.      This still leaves the question, how should a court determine whether such certain minimum education is being provided. It might not be appropriate for the answer to the question to be determined purely by the opinion of the particular district judge since this might result in different tests being applied depending upon in which District Court area the case is heard. In my view this Court must indicate how such question should be answered.

150.      In determining the matters to be considered by a court before whom a prosecution is brought, the first matter must relate to the child, because one form of education may be suitable for one child but not for another. The Court should consider its development, aptitudes and abilities with a view to a determination of the potential of the child.

151.      With this in mind, the Court must consider the actual education being provided, curricular subjects as well as non-curricular subjects, and the quality of the teaching and the response of the child to that teaching so as to ensure that the right of the child to develop its potential is not being infringed.

152.      In the past, a certain minimum education might well have been regarded as having been provided if the child concerned could read and write and have reasonable numeracy together with a smattering of knowledge in other disciplines. Such would not be so regarded today. There may be too much pressure on children to obtain success in State examinations, but it is a fact of life that in this competitive world progress in the form of entry to higher education and entry to gainful employment is measured in terms of academic success in national examinations. Any form of education which takes a child, who would otherwise have been in such mainstream, out of it cannot today be regarded as being a certain minimum.

153.      It is obviously too narrow a test to equate a certain minimum as enabling the child concerned to achieve its potential in the national examinations. Not all children reach that standard nor sit such examinations nor derive the same benefit from that form of education. The need to provide a certain minimum education must be considered in the light of the right of the parents to educate their children at home.

154.      This right cannot be abused to the detriment of the child. The parents alone cannot say what is best for their child.

155.      The concept of a certain minimum education indicates that this is a basic minimum. In practical terms, it requires that the core subjects in a school curriculum should be provided to the same standard. Since it is the right of the child which is being protected its welfare must be considered. As in other circumstances affecting children what is being done must be shown to be for the child's benefit. It is clear from the wide field of subjects provided for in national examinations that it is recognised that what suits one child might not suit another. So the certain minimum is the provision of tuition in those subjects which suit the particular child and at the same time will not deprive that child of future opportunities.

156.      In general it seems to me that the intellectual portion of the constitutional requirement is more likely to be satisfied at a school. On the contrary it seems to me that the moral and social requirements are more likely to be satisfied at home. In all cases it remains a question of fact. Clearly, a difficult one since it is probably easier to say that the certain minimum is not being provided rather than to say that it is.

157.      In assessing the facts, the district judge may take into account the reason or reasons why the child has not been sent to school in the first place or has been withdrawn from school. This can be material only in so far as it might affect the view of the judge as to the probabilities of a child achieving its potential. It is a factor to be considered. If a child is doing badly in school for whatever reasons, it might for that child be better if he or she is removed from the school and, if there is no other reasonable alternative, educated at home. However, as with the teaching or non-teaching of Irish, this is merely a factor to be considered having regard to the position as a whole.

158.      The factual situation in the present case is that of well-meaning parents seeking to do the best they can for their children and in their own light succeeding. As against that there is a well-balanced report by an inspector within the national school system who criticises the education being provided very considerably.

159.      His report is geared entirely towards a comparison of the education being provided with that available under the national school curriculum. This comparison is understandable since the mother is seeking to provide an education which reflects that available in the national school. But at the same time it seems to me that the inspector seems to give insufficient weight to the wider implications of the activities arranged for the children.

160.      Also, having obtained information from the school as to the progress of the three children he failed to give any indication of what that progress was and failed as a result to indicate whether they had improved or disimproved since attending home education. Undoubtedly, there was a strong implication in his report that they had disimproved. His real criticism, however, was the failure to structure the education in the sense, as I understand his criticism, that there were no goals set to be achieved by the children. It was this basic failure which led him to indicate that in his opinion the future of the children was being damaged.

161.      To sum up the matters which are important to be taken into account in determining whether or not a certain minimum education is being provided are:

(1) the personality of the child concerned;

(2) the quality of the home education being provided;

(3) the response of the child to this education as compared with its response to such other education as it may receive or have received; and

(4) whether the child will be adversely affected by continuing in the home education.

162.      In the circumstances, I would answer the question posed by the case stated as follows. The absence of a definition of suitable or minimum education cannot affect the decision of the Court. In each case, it is a question of mixed law and fact to be decided on the basis of the criteria indicated and the evidence adduced before it whether the education being provided is the certain minimum for that child.

163.      I would allow the appeal.