Supreme Court affirms constitutional right to primary education for children with special needs under Article 42.4.

THE SUPREME COURT

Appeal No: 203/00

Keane CJ

Denham J

Murphy J

Murray J

Hardiman J

BETWEEN

T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.D.)

APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND, AND THE ATTORNEY GENERAL THE EASTERN HEALTH BOARD AND BY ORDER OF THE

MINISTER FOR HEALTH AND CHILDREN

RESPONDENTS

BETWEEN

D.B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S.B.)

APPLICANT

AND

MINISTER FOR JUSTICE, MINISTER FOR HEALTH, MINISTER OF EDUCATION, IRELAND, THE ATTORNEY GENERAL AND THE

EASTERN HEALTH BOARD

RESPONDENTS

BETWEEN

M.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.D.)

APPLICANT

AND

MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD

RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K’O’D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A.D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

P.H. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R.F.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

B.J. (A MINOR SUING BY HIS GUARDIAN AD LITEM R.F.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

T.L. (A MINOR SUING BY HER GUARDIAN AD LITEM C.O’D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

BETWEEN

S.T. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D.T.)

APPLICANT

AND

MINISTER FOR EDUCATION AND SCIENCE, IRELAND , THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD

RESPONDENTS

Judgment of Mr Justice Francis D Murphy delivered the 17th day of December, 2001

In his judgment the Chief Justice concluded that the mandatory order made by Kelly J. in this matter on the 25th day of

February, 2000, though made from the best of motives, constituted an impermissible intrusion by the judiciary into the role

conferred by the Constitution on other organs of State. The Chief Justice decided that the learned trial judge was not entitled

to make the mandatory order in question as a means of vindicating a constitutional right of the applicant. I would go further. I

would question the existence of the constitutional right in respect of which the order was made.

With the exception of Article 42 of the Constitution, under the heading “Education”, there are no express provisions therein

cognisable by the courts which impose an express obligation on the State to provide accommodation, medical treatment,

welfare or any other form of socio economic benefit for any of its citizens however needy or deserving. It is true that the

exploration of unenumerated constitutional rights in Ryan .v. Attorney General [1965] I.R. 294 has established the existence of

a constitutional right of “bodily integrity”. The examination of that right in the State (C ) .v. Frawley [1976] I.R. 365 and the

State (Richardson) .v. The Governor of Mountjoy Prison [1980] I.L.R.M. 82 certainly establishes that the State has an

obligation in respect of the health of persons detained in prisons. However these authorities do not suggest the existence of

any general right in the citizen to receive, or an obligation on the State to provide medical and social services as a

constitutional obligation.

In G. v. An Bord Uchtála [1980] I.R. 32 (below) Henchy J. identified the right to bodily integrity (at p. 90-91) in the essentially

negative terms following:-

“As to a constitutional right to bodily integrity, such a right arises for judicial recognition or enforcement only in

circumstances which require that, in order to assure the dignity and freedom of the individual within the constitutional

framework, he or she should be held immune from a particular actual or threatened bodily injury or intrusion.”

With the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the civil

and political rather than the economic sphere. These are indeed important rights which were won for citizens in different

societies over a period of centuries often in the face of bitter opposition. Whilst limited poor law relief or workhouse

accommodation has existed in this and neighbouring jurisdictions for many years the demand for a coherent system of socio

economic rights, and more particularly the acceptance of that demand, does not appear to have emerged until the widespread

acceptance of socialist doctrines following the Second World War resulting in the now generally accepted concept of the

Welfare State.

The absence of any express reference to accommodation, medical treatment or social welfare of any description as a

constitutional right in the Constitution as enacted is a matter of significance. The failure to correct that omission in any of the

twenty-four referenda which have taken place since then would suggest a conscious decision to withhold from rights which are

now widely conferred by appropriate legislation the status of constitutionality in the sense of being rights conferred or

recognised by the Constitution.

The reluctance to elevate social welfare legislation to a higher plane may reflect a moral or political opposition to such change

or it may be a recognition of the difficulty of regulating rights of such complexity by fundamental legislation which cannot be

altered readily to meet changing social needs. Alternatively it may have been anticipated that the existence of a constitutional

right enforceable by the courts would involve - as the present case so clearly demonstrates - a radical departure from the

principle requiring the separation of the powers of the courts from those of the legislature and the executive. The inclusion in

the Constitution of Article 45 setting out directive principles of social policy for the general guidance of the Oireachtas - and

then subject to the express provision that they should not be cognisable by any Court - might be regarded as an ingenious

method of ensuring that social justice should be achieved while excluding the judiciary from any role in the attainment of that

objective. Indeed a similar approach was adopted in the Constitution of India 1949, which having provided in Part IV thereof for

certain “Directive Principles of State Policy”, went on to provide in Article 37 that:-

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are

nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles

in making laws.”

It may be that the Constitution of India has not excluded the courts from consideration of matters of social policy as effectively

as Article 45 of our Constitution but there is a distinct similarity in the approach made in both Constitutions to this difficult

problem.

The status of socio economic rights in our Constitution and the detailed provisions in relation to education were explained by

Professor Gerard Quinn in his essay “Rethinking the Nature of Economic, Social and Cultural Rights in the Irish Legal Order” in

Fundamental Social Rights (2001) (edited by Costello C) at p. 49 in the following colourful terms:-

“De Valera cleverly genuflected before socio economic rights but made sure to insert them into a part of the

Constitution that is unenforceable by the courts (Article 45 on Directive Principles of Social Policy). One socio economic

right escaped into the hard text: Article 42 on the right to education. Its presence in the text has more to do with

history than with logic. The intention of the British in the 1830s was to set up and find a network of free primary schools

on a purely non denominational basis. This was fiercely resisted by all Churches. In the compromise that ensued, the

State agreed to pay for the education and the religious bodies agreed to provide it. The main intention of Article 42

seems to have been to copperfasten this historic arrangement between Church and State.....”

There are, as I would see it, serious arguments against inferring the existence of positive socio economic rights (apart from the

anomalous rights relating to education) but there are impressive authorities to the contrary.

The immediate authority for the making of the order by Kelly J. was the decision of Mr Justice Geoghegan - then a judge of the

High Court - in FN .v. Minister for Education [1995] 1 I.R. 409. In the circumstances of that case Geoghegan J. held that where

there was a child with very special needs in respect of accommodation, maintenance and sustenance which could not be

provided by his parents or guardians there was a constitutional obligation on the State under Article 42.5 of the Constitution to

cater for those needs. That judgment was in turn based upon the decision of this Court in G .v. An Bord Uchtála [1980] I.R. 32.

There are far-reaching observations contained in some of the judgments delivered in that case which do support the

conclusions reached by Geoghegan J. What is a matter of concern is that some of these observations do not appear to have

been essential to the decision of the Court and furthermore may not have represented the views of the majority. My concern is

reflected in the comments of Henchy J. (at p. 83) when he said:-

“The single issue arising from those facts is whether, in pursuance of s. 3, sub-s. 2, of the Adoption Act, 1974, the

Adoption Board should be authorised to dispense with the consent of the plaintiff mother in the making of an adoption

order in favour of the couple (the notice parties) to whom the child was given for adoption.... Insofar as opinions or

observations on wider and unargued topics emanate from this case, I do not wish my silence on those obiter dicta to be

taken as concurrence.”

In considering the rights of an illegitimate child where an order was sought authorising the Adoption Board to dispense with the

consent to adoption of the natural mother O’Higgins C.J. went on to identify the nature of the child’s rights (at p. 55-56) in the

following terms:-

“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. In exceptional cases the State, under the

provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a

child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same

way, in special circumstances, the State may have an equal obligation in relation to a child born outside the family to

protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life

of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s.3 of the

Constitution.”

In G .v. An Bord Uchtála,Walsh J. reaffirmed a distinction which he had drawn (in McGee .v. The Attorney General [1974] I.R.

284) between constitutional rights on the one hand and natural or human rights on the other and then went on to say (at p.

69):-

“Not only has the child born out of lawful wedlock the natural right to have his welfare and health guarded no less well

than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against

all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the

natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the

practice of religion and to follow his or her conscience. The right of life necessarily implies the right to be born, the right

to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper

human standard in matters of food, clothing and habitation.”

It does not appear that Kenny J. accepted this fundamental distinction. At page 97 of the report - having quoted a passage

from The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 dealing with Article 40 of the Constitution he went on to say:-

“It seems to me that in that passage there is an equation of “natural rights” and “constitutional rights”. I do not accept

that there is such a connection, particularly as the word “natural” is so ambiguous. When used in connection with the

relationship of a mother and child, it may mean the link between them formed by the facts that she has conceived the

child, that it issues from her body and is fostered and nurtured by her; or it may mean that the theory of natural law,

on which so much of that part of the Constitution dealing with fundamental rights is based, recognises such a right.”

The fact that O’Higgins C.J. and Parke J. dissented from the judgments of the majority emphasises the complexity of the issues

under consideration and the measure of diversity which exists in the five wide-ranging judgments delivered in that important

case.

Whatever ambiguities may arise from an analysis of the judgments in G. v. An Bord Uchtála no such problems arise in relation to

the decision of this Court delivered by Finlay C.J. in the Adoption (No. 2) Bill 1987 [1989] I.R. 656. The then Chief Justice made

it clear that Article 42 s. 5 of the Constitution should be given a wide construction when he said (at p. 663):-

"Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference

to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases

envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to

supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also

the parental duty to cater for the other personal rights of the child."

What remains to be examined, however, is the extent of those parental duties and whether they derive solely from the

relationship between parent and child or whether the rights as against the parent - and in default against the State - may vary

with the age of the child.

The extent to which positive socio economic rights can and should be separated from the complex constitutional rights and

duties in respect of education and upheld or rejected independently of that particular right has never been explored adequately

by this Court. No doubt lawyers have been reluctant to assert and rely upon an undefined unenumerated welfare-type right

when there is room to argue that rights of accommodation, medicine and nurture are available under the heading of

"Education" to children as against their parents and, where the parents default for moral or physical reasons, against the

State. I suspect that this attractive argument is based on a very broad interpretation of the distinction made by Ó Dálaigh C.J.

between medication and education in Attorney General v. Ryan [1965] I.R. 294 when he said at p. 350:-

"(Counsel for the Plaintiff) contends that the provision of suitable food and drink for children is physical education. In the

Court's view, this is nurture, not education. Education essentially is the teaching and training of a child to make the best

possible use of his inherent and potential capacities, physical, mental and moral. To teach a child to minimise the

dangers of dental caries by adequate brushing of his teeth is physical education for it induces him to use his own

resources. To give him water of a nature calculated to minimise the danger of dental caries is in no way to educate him,

physically or otherwise, for it does not develop his resources."

That homely example was sufficient to dispose of the argument in that case which had been based upon Article 42 of the

Constitution. The addition of fluoride to a water supply did not offend that Article. On the other hand, I am sure that the

learned Chief Justice would be appalled if it were to be suggested that his helpful example had identified for all times and all

purposes the nature and extent of education particularly in the different contexts in which it is mentioned in Article 42 as

aforesaid. If education could be defined so widely as to include every facility or device the availability of which would assist an

individual to develop his personal resources, then every programme of medical rehabilitation and every custodial sentence,

having as some part of its purpose the reform of the prisoner, could be viewed from the standpoint of a constitutional right to

education of a child as against its parents in default of which a corresponding duty would fall upon the State.

Apart from the reluctance of litigants to forsake their express rights under Article 42, practical difficulties may be observed in

the reluctance of the Executive to contest - or even in the judiciary to permit the Executive to contest - the existence of a

particular socio economic benefit as a constitutional right when it is conceded as is so often the case, that those benefits are

available in accordance with legislative provisions or Ministerial schemes. In O'Donoghue v. The Minister for Health [1996] 2 I.R.

20 the High Court had concluded that although the applicant was profoundly mentally handicapped the State was obliged to

provide him with education which could properly be described as "primary". The appeal by the respondents was compromised on

the basis of an order which is quoted at the conclusion of the report (at p. 72) and on terms which recognise the existence of

different views as the fundamental rights of the parties:-

"Whereupon and upon opening and debate of the matter, this Court being informed by counsel for the applicant and by

counsel for the respondents that the State is now providing for the infant applicant education appropriate to his current

condition, this Court substitutes for the declaration in the High Court a declaration that the infant applicant is entitled to

free primary education in accordance with Article 42.4 of the Constitution and the State is under an obligation to provide

for such education. And this Court notes the statement of counsel for the respondents that the said respondents are

not to be taken as accepting the manner in which the learned trial judge interpreted the said obligation ....”

Again, in the equally tragic case of Sinnott v. The Minister for Education (Unreported, Supreme Court, 12th July, 2001) the

respondent contested only to a very limited extent the findings of the learned High Court judge as to the rights of the

applicant.

It is, of course, entirely understandable, and desirable politically and morally, that a society should, through its laws, devise

appropriate schemes and by means of taxation raise the necessary finance to fund such schemes as will enable the sick, the

poor and the underprivileged in our society to make the best use of the limited resources nature may have bestowed on them.

It is my belief that this entirely desirable goal must be achieved and can only be achieved by legislation and not by any

unrealistic extension of the provisions originally incorporated in Bunreacht na hÉireann. I believe that Costello J. was entirely

correct when in O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181 he concluded that the courts were singularly unsuited to

the task of assessing the validity of competing claims on national resources and that this was essentially the role of the

Oireachtas. It is only fair to add, as I have already pointed out, that those who framed the Constitution seem to have

anticipated this problem and provided a solution for it.