Supreme Court allows appeal against general damages for parents, upholding special damages for child's special education needs.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

326 & 327/00

BETWEEN:

JAMIE SINNOTT A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND KATHRYN SINNOTT

Plaintiff/Respondent

and

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

Defendants/Appellants

BETWEEN:

KATHRYN SINNOTT

Plaintiff/Respondent

and

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

Defendants/Appellants

JUDGMENT delivered the 12th day of July 2001 by Keane C.J.

Introduction

The facts in these two cases are not at this stage in dispute and, for the purpose of this judgment, I would propose to adopt the

comprehensive statement of them by Barr J. in the judgment under appeal. It is unnecessary to do more than summarise them and set

out the inferences which the learned trial judge drew from the primary facts and which, again, are not at this stage in dispute.

The plaintiff in the first proceedings was born on 11th October 1977 and was, at the date of the trial in the High Court, nearly 23

years of age. He was the third of nine children born to the plaintiff in the second proceedings (whom I shall call “Mrs. Sinnott”) and

her husband. Mrs. Sinnott has been separated from her husband for a number of years and the primary responsibility for the care and

upbringing of the plaintiff has been hers.

At about the age of four months, having developed normally until then, the plaintiff began to display symptoms of the condition known

as “autism”. While this appears to have happened shortly after he had received the vaccinations usual for a baby at his stage, there

is no finding, and nor was it necessary that there should be, that the autistic condition was caused or contributed to by the

vaccination he received.

Mrs. Sinnott is a U.S. citizen and her father, Dr. John Kelly, is a surgeon who has a house in Co. Cork where she and her children

originally lived. He became concerned about the plaintiff’s condition and Dr. Quigley, the family’s general practitioner, was consulted.

He referred him to the paediatric unit in St. Finbarr’s Hospital in June 1978 where he was assessed by Professor Barry. At that stage,

he had lost control of his jaw which had started to clamp and he has never since regained full jaw control. As a result, he tended to

drool saliva, a condition obviously distressing both to him and those in contact with him, from which he continued to suffer at the

date of the High Court hearing. Pressed by Dr. Kelly as to why the child was not reaching his normal milestones, Professor Barry said

that he would not discount autism. He advised that he be taken home and that they should watch the autism develop. Mrs. Sinnott

and her father were not directed to any other service where treatment might be given, nor was any arrangement made with them for

a further assessment by the hospital.

There followed a depressing saga extending over twenty years in which Mrs. Sinnott’s efforts to persuade the State’s health and

education authorities to recognise autism and provide appropriate education and training for those suffering by it were met with what

the trial judge described as

“official indifference and persistent procrastination which continued up to and through this trial.”

Mrs. Sinnott’s unremitting battle to secure proper treatment and educational facilities for her son eventually became a campaign on

behalf of autistic children generally: her commitment to that cause cannot be praised too highly. It must be pointed out that the

ignorance of the problems of autism in official circles was in stark contrast to the well known and documented international progress

in the area since the 1960s and earlier. The problem was compounded in this case by misleading professional advice which set back

the education and training of the plaintiff for years.

At an early stage, he was brought to Chicago where Mrs. Sinnott’s father practised as a surgeon and where he was diagnosed as

suffering from a psycho-motor problem, the effect of which was that the brain was not sending messages to his muscles and limbs.

Mrs. Sinnott was advised that by the Chicago specialist that intensive intervention was required in the form of occupation therapy,

physiotherapy and speech and language training. This treatment was made available to him at the Michael Reese Hospital, Chicago,

the director of which was Dr. Naomi Abraham. There he had regular sessions with Mrs. Elizabeth Osten, an occupational

psychotherapist, who gave evidence in the High Court and with other therapists. The treatment brought about substantial

improvements in the plaintiff’s behaviour, including the virtual elimination of the repetitive movements which are a feature of the

autistic condition. An important part of the training at the centre involved Mrs. Sinnott and the elder siblings: family collaboration and

participation in the education and care of the plaintiff was regarded as being of special importance.

Unfortunately, these encouraging developments ceased when Mrs. Sinnott returned to Ireland with the plaintiff and her other children

at Christmas 1978. Although she was provided with a programme, notes and records from the institutions in Chicago, she failed to

make any progress with Professor Barry and received no co-operation from the other organisations in Cork. During this time, the

plaintiff regressed to the condition he had been in before he went to Chicago.

At this stage, Mrs. Sinnott consulted a Dr. Patrick Murray, a psychiatrist with the Southern Health Board who worked with the

Brothers of Charity Institution at Lota which dealt with mentally disabled children. Dr. Murray, who has since died, appears to have

been unhappily misinformed as to the cause of autism in children. He espoused a theory advanced in the United Stated in the 1950s

and 60s by Dr. Bruno Betlehime that autism in children was the result of cold, unloving mothers. This was, it would seem, a wholly

discredited theory, but Dr. Murray was not aware of this and advised Mrs. Sinnott that the child should be isolated from his known

environment and admitted to hospital for six weeks for the purpose of assessment. Mrs. Sinnott was appalled by this suggestion and

contacted Dr. Abraham who agreed that the proposal was “crazy”. She contacted Dr. Murray, but the only compromise which he was

prepared to make was that she might visit him at the weekend or perhaps even take him home, “if things were going all right”.

However, in November 1979, Mrs. Sinnott succeeded in having the plaintiff assessed at “Cork Polio”, the forerunner of the COPE

Foundation which featured prominently in this case, by Dr. Irene Leahy, a psychologist and Dr. McCarthy. They were interested in the

treatment given in Chicago and recommended that he needed services for five days a week. However, all he was given in fact was a

“baby-sitting service” by nurses who were not teachers or therapists and were also disciples of Dr. Murray’s discredited theories on

autism. Although they were kind and loving, it was clearly not a suitable form of treatment for the child and, since he was regressing

substantially, Mrs. Sinnott brought him back to the centre in Chicago, where he attended as before for five months until April 1981.

Some progress was made under the direction of Dr. Abraham and under the care of Mrs. Osten and Dr. Margaret Creedon, a

developmental psychologist, who also gave evidence at the trial. A teaching video was provided to Mrs. Sinnott for the benefit of

people who would deliver the services and treatment that the plaintiff needed in Ireland, but although this was offered to the staff at

the COPE Foundation, to Dr. Murray and other possible providers of services, no one was interested. All that resulted was further

baby-sitting services from September 1981 until October 1982. From then until 1985, Cork Polio provided a baby-sitting facility one

and later two afternoons a week for him. From 1985 until October 1988, the plaintiff attended Cork Polio five days per week: this was

simply a baby-sitting service with no element of formal education.

In October 1998, when the plaintiff was eleven years old, he participated in a course of education for the first time. This was

conducted by Mrs. Naomi Smith, a physiotherapist in Cork Polio, who had studied in Hungary and had set up an education unit

designed chiefly for physically handicapped people. The plaintiff made some progress at this course, including in the area of feeding

himself and toileting, but, unfortunately, at the end of the trial period, it was decided at COPE not to proceed with the project. Mrs.

Sinnott’s difficulties were increased at this stage by the fact that there was no place available for him at COPE. However, from March

1989 to January 1991, Mrs. Sinnott conducted her own education programme with the plaintiff, based on Mrs. Smith’s model, which

was reasonably successful, but suffered from the disadvantage that the child was not in contact with any other children.

Matters improved somewhat when a place became available at the Our Lady of Good Counsel school at Lota which caters for

profoundly mentally handicapped children. The plaintiff joined in January 1991 when he was 13½ years old, but it suffered from the

disadvantage that the terms followed the same pattern as in primary schools and the long summer break caused much distress to the

child. Toilet training remained a problem, because the toilets were cold and far removed from the classroom. The plaintiff was still

wearing a nappy at this stage and continued to do so at the time of the hearing in the High Court at the age of 23 years.

He remained at this school for about 2½ years until June 1993 when he was nearly 16 years old. There was, however, another

unfortunate development when the optimum size for classes of children suffering from severe or profound mental handicapped -

generally acknowledged to be six - was ignored. The teacher, Mrs. Yvonne O’Malley had to cope with a class of 23 seriously disabled

pupils and found it impossible to do so. Ultimately, Mrs. O’Malley confined herself to a class of 12 children, but without any help from

other teachers: the volunteers who had assisted her previously were informed by the Brothers of Charity that their services were no

longer required. Eventually a second teacher was appointed for the remaining eleven younger pupils: the plaintiff was allocated to the

latter group but later was transferred to Ms. O’Malley’s class. He was bullied and subsequently assaulted and seriously injured by one

of the other pupils, requiring treatment in hospital. He was then transferred back to the group for the younger children, which, in

terms of age, was not appropriate for him.

From June 1995, no further education was available at this centre and it became a health facility only. The withdrawal of teachers

also meant the withdrawal of transport to and from the school which had previously been provided by the Department of Education.

Even before that development, the plaintiff had been receiving only one 45 minute teaching session per day. Toilet training was not

possible and there were no facilities for resting, although it is known that disabled children tend to get tired more easily than other

children. The point was taken up with the staff but she was told that, if the child was tired, he should not go to school.

As a result of these defects in the centre, the plaintiff lost much of his ability to walk and had on occasions to be provided with a

wheelchair. He was also developing epileptic fits more frequently.

The next development of importance was the setting up of a special class for the plaintiff and another child in a similar position at St.

Paul’s School, COPE. Here educational facilities were provided by a qualified teacher, Ms. Miriam Kingston, who had specialised training

in dealing with children with severe or profound mental handicap and who had some knowledge of autism. The trial judge commented

that

“there followed a short golden period in the education of Jamie which restored much lost ground and a variety of new talents

were developed. It illustrates graphically what would have been achieved if he had received similar education from his early

years.”

The plaintiff was now 18 years of age and the Department of Education were asked to extend his education for another year. As a

result, it would seem, of the judgment of the High Court in O’Donoghue .v. The Minister for Health and Others, [(1996) 2 IR 20] the

school year at St. Paul’s had been lengthened and the summer holiday was now only one month. Unfortunately when the plaintiff

returned in September, Ms. Kingston had left and this led to some further disruption.

In September 1997, the plaintiff’s period at St. Paul’s came to an end: the school was not prepared to educate him any longer. This

obviously created considerable difficulties for Mrs. Sinnott, since he needed further training in such basic areas as toilet training to

make up for the long periods when he had received no education of any sort. Eventually Mrs. Sinnott was told that it was intended to

move him to The Orchard, another institution at COPE, where he would be in a class of six severely or profoundly mentally

handicapped young adults of about his own age. Mrs. Sinnott had serious reservations about the proposed move, having regard to the

lack of qualifications of the teacher. None of the other young people in the class were ambulatory, they were not autistic and they

did not have the range of problems which he had.

There was evidence at the trial of another school in Cork which followed what was called the CABAS system. This is an acronym for

“comprehensive applied behavioural analysis system”: it has a “one to one” teaching service and auxiliary staff for twelve autistic 3

to 5 year children and is run by an American professor and his assistant. (Mrs. Sinnott’s daughter was a trainee teacher there at the

time of the High Court hearing.) This was a pilot project, intended to run for three years, and was having substantial success,

particularly in the area of toilet training. Mrs. Sinnott sought to persuade The Orchard to adopt a similar system, but without success,

leading to the plaintiff reverting to wearing nappies at school.

The trial judge summed up the plaintiff’s experience as follows:

“No programme was devised for Jamie’s education and training until half way through the trial when a grossly defective one

was gathered together in haste which was roundly condemned by the experts - even those called on behalf of the defence. It

demonstrated a fundamental lack of understanding of autism and its problems. Professor James Hogg, a world renowned

authority in autism, stated in evidence that if one of his staff had produced The Orchard programme he would have been

genuinely dismayed. He went on to specify a series of fundamental flaws which it contained. Professor Peter Mittler, also a

major world authority on autism, who was called on behalf of the defence, was critical of the programme and the best he was

able to say of it was that it might be a beginning on which a proper programme could be built ...

“Although at best the likelihood is that Jamie always would have suffered from serious mental and physical incapacity arising

out of his autism and related disabilities, even if he had received appropriate ongoing education and training at an early age

similar to that which he had in Chicago and which the CABAS organisation is pioneering in Cork, the expert evidence indicates a

probability that his physical and mental capacity and his enjoyment of life would have improved substantially from an early

age. It is reasonable to assume that, in particular, he would have been fully toilet trained from early childhood: his persistent

drooling would have been cured or at least greatly improved long ago; he would have been substantially more mobile and

would have developed greater dexterity with his hands. There are positive indications that his mental capacity probably would

have improved and, through professional speech therapy, he may have developed in time a rudimentary capacity with

language - though the latter development appears to be no more than a possibility. Early signs indicated a probability that he

could have been successfully trained for sheltered employment similar to that of the towel-folding youngster employed in a

gymnasium which was referred to by Dr. Walsh in the course of her evidence ...

“All of the experts agree that the earlier a severely autistic and mentally handicapped child such as Jamie has specialised

educational training, the greater the likelihood of improving the capacity and quality of life of the sufferer. Jamie had less than

three years of meaningful education and training so far in 23 years of existence ... Whatever happens to him in the future,

that loss can never be fully restored because, as the experts point out, education now is arriving too late in his life to achieve

optimum results. Progress is more difficult and potentially more stressful for him than would have been the case if he had

been educated from an early age. At best he has suffered through lack of educational training a diminution in the quality of his

life which has been substantial up to now but which should also continue significantly into the future - even if he derives major

benefit from the education and training now proposed for him. It is probable that he will have a lifelong need for ongoing basic

education and training consistent with his requirements as they emerge in the future. Regular assessment will be important

for him ...”

The trial judge found that the primary weaknesses in the administrative structures of the State which gave rise to the claims of the

plaintiff and Mrs. Sinnott were twofold. First, there was a lack of liaison between the two relevant departments of state - education

and health - where a particular problem involved both of them. Thus, in the plaintiff’s case, he required both continuing education and

training and also services properly classified as medical, including various therapies. The evidence established that it was accepted by

senior officials at the time of the trial that it was unreal to draw demarcation lines between the obligations of individual departments

of State to the claimant. He commented that

“The reality is that the constitutional obligations to provide primary education, training and health care for the plaintiff and

others like him is that of the State per se.”

The second feature of the administrative structures which gave rise to the weaknesses resulting in the institution of the proceedings

was the role of the Department of Finance. The trial judge said it appeared to him that its officials were insufficiently informed as to

the constitutional obligations of the State to the weak and deprived in society. Having observed that it was a fact of life that in times

of economic difficulty the State might be obliged severely to curtail expenditure and other projects for which exchequer funding is

sought, he said that the need for government, and financial administrators, to exercise what he described as “a balance of

constitutional justice” in determining the priorities of competing claims was of particular importance. He concluded that:-

“A citizen’s constitutional right must be responded to by the State in full. A partial response has no justification in law, even in

difficult financial circumstances which may entail the raising of new tax revenue to meet such claims - happily a situation

which has not pertained for several years.”

He summed up his findings by saying that the sad history of the plaintiff cogently illustrated that the State had failed to participate

actively and meaningfully in the provision of appropriate services for him and those like him over the years. He cited in particular a

“speaking note” for the Minister for Education and Science dated the 18th September 1997 for a meeting with the Minister for Finance

which said

“Given the original High Court judgment [in the O’Donoghue case], Department of Finance has used the impending appeal as a

justification for not conceding the PTR [pupil/teacher ratio] of 6:1 and the two child care posts per class. As indicated above

this excuse is no longer valid.”

The trial judge pointed out that government approval for these changes was not granted until 29th October 1998, i.e. more than five

years after the judgment in O’DonoghuE. His uncontroverted conclusion was that, in the meantime, many hundreds of children with

severe or profound mental handicap including the plaintiff, had been deprived of education, not withstanding their established

constitutional right to the provision of such education by the State.

Finally, it should be noted that, since the institution of these proceedings the Education Act 1998 (hereafter “the 1998 Act”) came

into force. That Act, which constituted the first statutory regulation of education in Ireland since the foundation of the State,

contains special provisions dealing with the education of mentally handicapped persons which will be referred to at a later point.

The proceedings

In the first proceedings, the plaintiff claims that, as a result of the facts already summarised, the first named defendant (hereafter

“the Minister”) had failed to provide for free education for the plaintiff, had discriminated against him in the provision of free education

facilities, had failed to vindicate his right to education and, in particular, his right to receive a certain minimum education, moral,

intellectual and social, and had failed to supplement or give any reasonable aid to private educational initiatives for the provision of

educational facilities for the plaintiff. It was further claimed that the Minister discriminated against the plaintiff by failing to provide

free transport for substantial periods of time to the limited facilities that had been made available to the plaintiff. A declaration was

claimed that, in the result, the plaintiff had been deprived of his constitutional rights pursuant to Article 40 and 42 of the Constitution

and in particular Article 40.1 and 40.3.1 and 40.3.2 and Article 42.3.2 and Article 42.4. Damages were claimed for breach of the

plaintiff’s constitutional rights, negligence and breach of duty. A mandatory injunction was also claimed directing the first named

defendant to provide for free education for the plaintiff appropriate to his needs for as long as he is capable of benefiting from them.

Special damages were also claimed in respect of the various treatments, etc. for which Mrs. Sinnott had paid.

In their defence, the defendants said that the first named defendant had provided for the free primary education of the plaintiff for

specified periods. It was denied that they had deprived the plaintiff of any of his constitutional rights pursuant to Articles 40 and 42

of the Constitution.

In the second proceedings, Mrs. Sinnott claims that, as a result of the facts already summarised, the defendants had failed to

respect, defend and vindicate the plaintiff’s constitutional rights as the mother of the plaintiff by failing to provide any education

appropriate to him, imposing inordinate burdens on her, and discriminating against the plaintiff in the provision of free primary

educational facilities and in failing to provide free transport for substantial periods of time. She claimed a declaration that these

actions had deprived her of constitutional rights pursuant to Articles 40.1, 40.3.1 and 2, and 41.2 and 2, 42.1 and 2 and 3 and 4 and

a mandatory injunction similar to that claimed in the first proceedings. She also claimed special damages in respect of treatment etc.

provided by her.

In their defence, the defendants again plead that the Minister had provided for the free primary education of the plaintiff for specified

periods and denied that they had deprived Mrs. Sinnott of any of her constitutional rights pursuant to the Articles referred to.

The action was at hearing for 29 days in the High Court. In his reserved judgment, having set out the facts as already summarised,

the trial judge cited with approval the conclusions of O’Hanlon J. in O’Donoghue .v. The Minister for Education and Others, and, in

particular, his conclusion that in such cases, the process of primary education should continue “as long as the ability for further

development is discernible”. He concluded that, in the light of the facts, the plaintiff was in need of continuous education which was

not “age related”. He said that

“I am satisfied that the constitutional obligation under Article 42, s. 4, to provide and continue to provide for primary

education and related ancillary services for Jamie Sinnott is open-ended and will continue as long as such education and

services are reasonably required by him.”

Having rejected claims that both actions were barred under the Statute of Limitations 1957, he held that both plaintiffs were entitled

to the declarations which they claimed in their respective statements of claim and to damages arising out of the breach of their

constitutional rights.

As to the damages to which the plaintiff was entitled, the trial judge said that

“In the interests of justice it is proper that he now should have the best available primary education and training so that he

may have the maximum prospect of making up lost ground and thus limiting the degree of permanent damage which he has

suffered through the defendants’ breach of duty.”

The trial judge said that the ongoing education and training would be best provided in the form of a scheme called ABA (Applied

Behaviour Analysis), a home based programme for sufferers from autism which was being pioneered successfully in England. The

estimated annual cost of this programme was approximately £28,000. He said that, towards the end of the period, the plaintiff should

be assessed and due regard had to the possibility that a place might be available to him at a centre for autistic adults in COPE if one

existed at the time. If a suitable facility did not exist, it might be necessary for him to embark on a further ABA programme or a similar

alternative regime. In the latter event, he said that it would be necessary for the court to award

“further damages to cover the cost of any additional programme which may be required.”

He accordingly awarded damages as follows:

Estimated cost of the ABA programme for education for 2½ years at £28,000 p.a.: £70,000;

Ancillary services for a like period at £15,000 p.a.: £37,500;

General damages for additional suffering, distress and loss of enjoyment of life from October 1981 to date: £90,000;

Ongoing distress in the future resulting from the delay in providing education and training, etc.: £25,000

Total: £222,500.

The trial judge also found that there had been a breach of Mrs. Sinnott’s constitutional rights and that, in addition to agreed special

damages of £15,000, she was entitled to the sum of £55,000 general damages.

As to the claim for a mandatory injunction in both actions, the trial judge said

“The mandatory injunction claimed in each action shall be considered by the court as part of the foregoing review, but, if

necessary, the plaintiffs shall have liberty to make earlier application in that regard.”

The Order in the first proceedings provided in paragraph (1) that the plaintiff should recover from the defendants the sum of £222,500

damages computed as already indicated. It then went on to order

“(2) That the first named defendant do forthwith provide for free primary education for the plaintiff appropriate to his needs

for as long as he is capable of benefiting from same;

(3) That an application be made forthwith to have the plaintiff taken into wardship;

(4) (i) That the plaintiff be provided with the necessary funding for the applied behavioural analyses home based programme

for sufferers from autism for 2½ years estimated at £28,000 per annum subject to review on completion,

(ii) That the plaintiff be provided with the necessary funding for home based ancillary services, speech, physiotherapy,

occupational and music therapies and medical care estimated at £15,000 per annum subject to review on completion,

(5) That the mandatory injunction and damages granted herein be reviewed in April 2003 and that a claim for further damages

over and above the damages awarded by the court to date be adjourned to this review with liberty to the plaintiff to re-enter

or to apply in the interim in that regard.”

Two features of the order should be noted. There was an element of duplication in respect of the relief granted at paragraph (4)(i)

and (ii): the relevant sums are included in the total of £222,500 damages ordered to be paid in paragraph (1). It is also not clear that

the trial judge envisaged the granting of an immediate mandatory injunction as set out in paragraph (2): he appears to have taken

the view that it might arise on the review which was to be carried out in April 2003.

It should be noted that the defendants did not contend in the High Court that the admitted constitutional right of the plaintiff to free

primary education ended at the age when primary education would normally cease: it was accepted that, having regard to his special

needs, it did not cease until he reached the age of 18. His claim, however, and that of Mrs. Sinnott to damages and other relief were

resisted on the ground that (i) there had been no breach of his right to free primary education up to the age of 18 and (ii) he was not

entitled to free primary education beyond the age of 18.

The appeal

In both proceedings, the defendants filed notices of appeal in which they, in effect, appealed against the entire of the judgment and

orders in both cases. However, in a letter dated the 23rd November 2000, it was indicated to the solicitors for the plaintiffs in both

cases that, not only was no appeal being brought from that portion of the orders of the High Court which awarded the plaintiffs the

costs of the proceedings, but that the defendants would also meet the plaintiffs’ costs of appearing as respondents to the proposed

appeals to this court on a party and party basis, the costs to be taxed in default of agreement. It was stated that their decision to

meet the plaintiffs’ costs of the appeal was without prejudice to their clients’ entitlement to appeal.

In a further letter of 8th March 2001, which followed earlier correspondence between the solicitors for the plaintiffs and the Chief

State Solicitor, the latter stated:

“Further to the (sic) your letter of today’s date, the Minister’s press release of this evening and our conversations of this

evening, we confirm that the Minister intends to discharge the award of damages made by Barr J. in his judgment.”

The plaintiffs then brought a notice of motion in each of the proceedings to this court seeking directions as to

“The scope of the issues (if any) which remained to be determined by this honourable court, in the light of communications

by, or on behalf of, the defendants/appellants.”

On the hearing of that motion, counsel on behalf of the defendants informed the court that, for the purposes of the appeal, it was

conceded on behalf of his clients that the constitutional right of the first named plaintiff to free primary education up to the age of 18

had been violated by them and that no appeal was being pursued in relation to the sums awarded to him by way of general and

special damages amounting to £222,500. The appeal would, accordingly, in that case be confined to so much of the judgment and

order as found the first named plaintiff entitled to free primary education appropriate to his needs from the age of 18 onwards for as

long as he was capable of benefiting from such education and to the reliefs by way of mandatory injunction and otherwise granted to

the plaintiff in respect of those findings at paragraph 2 of the order of the High Court. In the case of the second proceedings, counsel

informed the court that the appeal of the defendants was being pursued in respect of the entire of the judgment and order of the

High Court in favour of the plaintiff, other than the award of special damages of £15,000 and the order for costs.

Submissions of the parties

On behalf of the defendants, Mr. Fitzsimons S.C. said that it was accepted that no issue arose as to the facts in this case. Nor were

the defendants seeking to set aside the award of damages to the plaintiff. The defendants were, however, concerned with those

aspects of the judgment and order of the High Court which proceeded on the basis that the plaintiff, and other persons in a like

situation, were entitled as a matter of constitutional right to free primary education without any limitation as to age. While he

acknowledged that the posture now being adopted by the defendants was open to criticism on the ground that it was not consistent

with their admission that the defendant was entitled to an award of damages in respect of the period up to the hearing in the High

Court, during which the plaintiff reached the age of 22 years, he said that the defendants’ contention was that, even in the case of

persons with special needs such as the plaintiff, the constitutional right to free primary education ceased when they reached the age

of majority at 18 and were no longer children. That did not mean that thereafter no facilities appropriate to his special needs would be

available to the plaintiff: on the contrary, such facilities would be provided to him for so long as they were required by him in the light

of his special needs. They would be so available, however, he said, not as a matter of constitutional right, but in the appropriate

exercise by the Minister of the powers and functions conferred on him by the 1998 Act in respect of persons with disabilities or other

special educational needs.

Mr. Fitzsimons submitted that the finding in the High Court that the guarantee of free primary education contained in Article 42 of the

Constitution extended to adults in certain circumstances was in conflict with the language of the Article which, in both the Irish and

English texts, made it clear that children, and not adults, were to be the recipients of the free primary education thereby guaranteed.

It was also inconsistent with the interpretation of Article 42.4 adopted by this court in Crowley .v. Ireland (1980) IR 102 and with the

decision of the High Court in O’Sheil .v. The Minister for Education (1999) 2 IR 321. Mr. Fitzsimons further submitted that the

approach adopted in the High Court was based on an unwarranted extension of what had been said as to the right to free primary

education of persons with disability in O’Donoghue .v. Minister for Health.

Mr. Fitzsimons submitted that the form of relief granted by the High Court judge, other than the award of damages in respect of the

breach of his constitutional rights up to the time of the hearing in the High Court, was in violation of the doctrine of the separation of

powers enjoined by the Constitution. The court was, in effect, usurping the exclusive roles of the Oireachtas and the Executive in

giving directions to those organs of State as to how monies should be expended in order to meet any special educational needs of the

plaintiff. It was, he said, undertaking a function which had required elaborate legislative provisions in the United Kingdom, such as the

Education Act 1993 and the Education Act 1996 and which the court had neither the legal authority nor the necessary resources to

discharge.

Mr. Fitzsimons further submitted that the court, in reserving to itself the right to award further damages to the plaintiff at the “review

date” in April 2003, was proceeding on the assumption that the defendants would fail to comply with the order in paragraph (2): the

provision for the assessment of damages at that point in time was a form of in terrorem remedy. He said that this assumption was

without any justification in law and that the course adopted was unprecedented and contrary to principle.

As to the claim made on behalf of Mrs. Sinnott in the second proceedings, Mr. Fitzsimons submitted that the proceedings disclosed no

cause of action known to the law. The claim pursued on behalf of Mrs. Sinnott was a purely derivative one arising from the admitted

breach of the constitutional right of the plaintiff to free primary education. No such right of Mrs. Sinnott had been infringed by the

defendants. Mr. Fitzsimons said that, in those circumstances, the plaintiff had been driven to relying on the provisions of Article 41

affording protection to the family as an institution. The fact that the constitutional right of a member of a family had been infringed

entitled that member to appropriate relief to remedy that wrong, but there was no justification for affording a similar remedy to other

members of the same family whose rights had not been infringed in any way. He cited in support the decision of the High Court in P.H.

.v. John Murphy & Sons Ltd. (1987) IR 621.

On behalf of the plaintiffs, Mr. Dermot Gleeson, S.C. and Mr. Sreenan, S.C. submitted that the guarantee of free primary education

contained in Article 42 should be construed in the light of its unique character as the only provision expressly requiring the State to

spend money on a specific social objective. There was no such provision, they said, in respect of what would nowadays be regarded

as such essential features of the State’s obligations as the health services and social welfare benefits. They submitted that, while the

most obvious beneficiaries of a free primary education are children who have not reached the age at which secondary education

normally began, there was nothing in the wording of Article 42 which would justify the withholding of free primary education from a

person such as the plaintiff who, because of his special needs, would continue to require it long after that age. It was indeed

conceded on behalf of the defendants that he was entitled to it as a matter of constitutional right at least until the age of 18, at

which stage he would have clearly passed the age level at which primary education normally ceased and secondary education began.

They submitted that the constitutional guarantee of free primary education was not subject to an implied restriction that it would be

unavailable to persons who, because of their disability, would require a longer period of primary education than more fortunately

endowed children. The finding of the High Court judge that need, and not a rigid determination related to age, should be the criterion

for determining whether a person was constitutionally entitled to free primary education was correct and should be upheld: it was also

in accord with the views expressed by O’Hanlon J. in O’Donoghue .v. Minister for Health.

Mr. Gleeson and Mr. Sreenan submitted that, so far as the nature of the order in the first proceedings was concerned, the trial judge

was not merely entitled, but bound, to fashion a remedy which would deal effectively with the wrongs inflicted on the plaintiff by the

defendants. Since this was a case, they urged, in which the High Court judge had found as a fact that the plaintiff had less than

three years of meaningful education and training during the first 23 years of his life, a finding which was not disputed on this appeal,

it followed that he also had to provide a remedy which would ensure that, within the resources available to the law, that situation

was remedied in the future. That did not involve any violation of the doctrine of the separation of powers, since each of the organs of

State was obliged to protect and vindicate the constitutional rights of the plaintiff and the courts could not abdicate their

responsibilities in that regard where there had been so signal a failure on the part of the executive to perform their duty. While it was

true that the implementation of distributive justice was a matter for the Oireachtas and the executive, this was not an instance of

such justice: this was properly regarded as a case of commutative justice, which required the framing of such a remedy. They said

that the High Court was perfectly entitled, in the light of the history of the case, to proceed on the assumption that the defendants

would again fail in their duty to uphold the constitutional rights of the first named plaintiff in the absence of continuing supervision by

the High Court.

As to the claim of the second named plaintiff, Mr. Gleeson and Mr. Sreenan submitted that Article 42 of the Constitution

acknowledged her primary role as a parent in the education of her children and her right to chose the form of education which she

considered most suitable for them, provided it attained the minimum level required by the Article. In the case of the first named

plaintiff her parental right of choice had been infringed by the failure of the defendants to make freely available to her, as they were

required to do, a form of primary education suitable to his special needs. The High Court judge had found, and again this was not

disputed for the purposes of the appeal, that the State’s failure in this regard had placed a huge and unacceptable burden on the

second named plaintiff and, as in the case of any other violation of a constitutional right, she was entitled to the appropriate remedy,

which in this case was the award of general damages made in the High Court.

The applicable law

Article 42.4 of the Constitution provides that:

“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and

corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with

due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”

The corresponding provision in the Constitution of the Irish Free State was much shorter and simply provided that

“All citizens of the Irish Free State (Saorstát Éireann) have the right to free elementary education.”

Article 42.4 was considered by this court in Crowley .v. The Minister for Education and Others. In the course of their judgments,

O’Higgins C.J. and Kenny J. laid emphasis on the use of the expression “provide for” for rather than “provide”. They pointed out that

this carefully chosen language reflected the historical background to the Article: it was clearly envisaged that education, in the main,

would not be provided in State schools, but in schools owned and managed by religious denominations, the necessary finances being

provided by the State. As already noted, in the case of children, such as the plaintiff, suffering from severe mental handicap, such

facilities as were available have, for the most part, been provided in institutions run by religious orders. No issue arises between the

parties, however, in this context: it is acknowledged that the extent of the State’s obligation to provide for free primary education,

which is at issue, is the same, whether the State provides that education itself directly, or indirectly by ensuring that the necessary

finances are available to private bodies engaged in its provision.

The extent of the State’s obligations was considered by O’Hanlon J. in O’Donoghue .v. Minister for Health. The plaintiff in that case

had, at the age of eight months, contracted an illness which left him physically disabled and profoundly mentally handicapped. He also

lived in Cork and, when he reached school age, his mother applied on a number of occasions to the COPE Foundation to have him

admitted as a pupil. She was informed, however, that there were no vacancies and the applicant was placed on a waiting list. His

mother cared for him at home and arranged for him to be educated privately at her own expense. Following the institution of

proceedings by him seeking an order of mandamus compelling the Minister for Health and the Minister for Education to provide him with

free primary education, he was told that he would be provided with a place at the COPE Foundation at the beginning of the following

school year, that he would be given day care facilities until that time and would be provided with free transport to and from the

Foundation, so far as was required.

The proceedings came on for hearing in the High Court when the applicant was aged eight. It was contended on behalf of the

respondents that efforts that were made to educate profoundly mentally handicapped children, such as the applicant, were of no real

or lasting benefit to them and that he was effectively ineducable. They also claimed that the education referred to in Article 42.4 was

“of a scholastic nature” which could be of no benefit to the applicant and that such training as could be provided for the applicant

and might benefit him was not “primary education” within the meaning of the Article. They also urged that the applicant, having been

provided with a place at the COPE Foundation, had achieved the essential relief sought and that the proceedings were, accordingly,

moot.

All of these contentions were rejected by O’Hanlon J. He concluded, in the light of the evidence, that the applicant was not

ineducable and that, having regard to the explanation by Ó Dálaigh C.J. in Ryan .v. Attorney General (1965) IR 294 of what is meant

by “education” in Article 42, the respondents had failed to provide for the free primary education of the applicant in breach of his

constitutional rights under that Article. The learned judge was also of the view that, while the applicant had been granted a place at

the COPE Foundation since the institution of the proceedings, this had been done as a matter of concession which could be

withdrawn at any time and that in any event the facilities so provided were, in his opinion, inadequate. In the result, he held that the

applicant was entitled to establish his continuing constitutional right to free primary education and to an award of damages in respect

of the breach of that right which had already occurred.

The respondents appealed to this court and, on the opening of the appeal, the court was informed by counsel that the respondents

were now providing for the applicant education appropriate to his current condition. The court then substituted for the declaration in

the High Court a declaration that the applicant was entitled to free primary education in accordance with Article 42.4 of the

Constitution and that the State was under an obligation to provide for such education. The court noted statements by counsel

reserving the positions of their respective clients as to the correctness or otherwise of the manner in which the learned trial judge

had interpreted the obligation in question. Although it is not contended in this case, as it had been in O’Donoghue, that the plaintiff is

ineducable or that the free primary education referred to in Article 42.4 is confined to education in the purely scholastic sense, the

basis upon which O’Hanlon J. arrived at that conclusion is of considerable assistance in resolving the matter which is at issue, i.e. the

age, if any, at which persons in the situation of the plaintiff cease to be entitled to free primary education.

In the earlier part of his judgment, O’Hanlon J. considered in some detail the developments that have taken place, particularly in the

second half of the last century, in the field of the education of mentally handicapped children. He referred to two reports of particular

relevance in the Irish context: the report of the Working Party to the Minister for Education and the Minister for Health and Social

Welfare on the Education and training of severely and profoundly mentally handicapped children in Ireland (known as “the Blue

Report”) published in January 1983 and the report of the Review Group on Mentally Handicap Services (known as “the Lilac Report”)

published in July 1990. He also traced the evolution of changes in public awareness as to the benefit of educating children with more

severe degrees of mental handicap in England and the United States which were reflected in legislation enacted in those jurisdictions

making the provision of free appropriate education for all children compulsory, no matter how severe or profound their handicap, citing

as examples the Education of All Handicapped Children Act, 1975 (U.S. Public Law 94-142) and the English Education Act of 1970. He

quoted a passage at p. 28 of the Blue Report as follows:-

“In the past, certain groups of handicapped children were excluded from access to education and training because of a very

narrow definition of education, and it was felt that certain children’s disabilities were so great that they could not benefit from

the curriculum in schools. More recently, however, the aims of education have been broadened considerably and there is a

world wide awareness that education can be of help in maximising human potential even for the most disabled people ...”

That report also referred to the following definition of education to be found in the Warnock Report in England:-

“The aims of education are the same, whatever the advantages or disadvantages of the child concerned. These aims are,

first, to increase the child’s knowledge of the world he lives in and his imaginative understanding, both of the possibilities of

that world and of his own responsibilities in it; and, secondly, to give him as much independence and self sufficiency as he is

capable of, by teaching him those things he must know in order to find work and to manage and control his own life.

“Children have manifestly different obstacles to overcome in their path towards this double goal, and for some the obstacles are so

enormous that the distance they travel will not be very great. But for these children any progress at all is significant. For the most

severely handicapped, education seeks to have them overcome their difficulties one by one.”

The report went on to list three categories of skills in which education and training could be given to severely and profoundly mentally

handicapped children. These were “basic skills”, including “self-help skills”, such as dressing, washing, feeding, toileting, “expressive

skills”, such as communication skills and “leisure skills” such as playing with toys and participation in simple games.

O’Hanlon J. also summarised the contents of the primary school curriculum produced in 1951 which laid particular stress on three

aspects of primary education which were regarded as of importance, although not, within the scope of the conventional subjects

associated with schools, i.e. social and environmental studies, music and physical education.

Having referred to the provisions of some international conventions, including the United Nations Convention on the Rights of the Child

which laid emphasis on the right of a mentally or physically disabled child to “a full and decent life”, O’Hanlon J. went on to consider

the law applicable in this jurisdiction. He cited a passage from the judgment of Kenny J. in the High Court in Ryan .v. The Attorney

General, the case in which the plaintiff claimed that the introduction of fluoride into the municipal water supply in Dublin was a breach

of her constitutional rights. It was argued on her behalf that she was entitled to provide as she thought fit for the health and welfare

of her children and that this was part of the process of education in respect of which the primary role of the parent was

acknowledged by the provisions of Article 42 of the Constitution. Kenny J. rejected this submission saying:

“... It seems to me that the terms of this Article showed that the word ‘education’ was not used in this wide sense in the

Constitution. Section 1 of the Article recognises the ‘right and duty of parents to provide, according to their means, for the

religious and moral, intellectual, physical and social education of their children’, but in section 2 it is provided that parents are

free to provide this education in their homes or in schools recognised or established by the State. The education referred to in

section 1 must, therefore, be one that can be provided in schools and must, therefore, be one of a scholastic nature.”

In this court, the judgment of Kenny J. was upheld, but Ó Dálaigh C.J., delivering the judgment of the court, adopted a wider

definition of “education” than that which had found favour in the High Court, saying

“(Counsel) contends that the provision of suitable food and drink for a child 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.” [Emphasis added.]

Having said that he considered the definition adopted by Ó Dálaigh C.J. as more useful in the context of the case which he was

deciding, O’Hanlon J. held that the education to which the applicant in that case claimed to be entitled under the provisions of Article

42 could be correctly described as “primary education” within the meaning of Article 42.2.

O’Hanlon J. went on to consider the claim that the case was in any event a moot and, as already noted, expressed his view that the

education being provided at that stage in the COPE Foundation did not meet the plaintiff’s constitutional entitlements. He then went

on in an important passage to state that

“The evidence given in this case also gives rise to a strong conviction that primary education for this category, if it is to meet

their special needs, requires a new approach in respect of :- ...

(2) Duration of primary education: as this category will, in all probability, never proceed further, and are unlikely to

proceed far up the ladder of primary education itself, the process should, ideally, continue as long as the ability for the

development is discernible. Professor Hogg suggests that age eighteen may not be unrealistic in this context ....”

[Emphasis added].

He accordingly granted the declaration already referred to and awarded the applicant the sum of £7,645.71 by way of damages.

The materials referred to in this judgment are also considered exhaustively by Barr J. in the judgment under appeal. He approved of

the statement of the law by O’Hanlon J. in that case and applied the principles laid down to the facts of the present case which are,

of course, similar in many respects.

I am also satisfied that the statement of the law by O’Hanlon J. in O’Donoghue is correct. It is not material in this context that the

respondents did not proceed with their appeal in that case, since it would be open to this court in the present case to disapprove of

the decision. However, although there is a suggestion (not elaborated upon) in the written submissions on behalf of the defendants

that the approach of Barr J. in interpreting Article 42.4 was in conflict with that of this court in Crowley, I did not understand Mr.

Fitzsimons in his oral arguments to invite this court to disapprove of the decision in O’Donoghue. I think that his approach can be

fairly summarised as being that the decision of the High Court in this case constituted an unwarranted extension of the principles laid

down by O’Hanlon J. in O’Donoghue. To put it another way, he was contending that although O’Hanlon J. had found that, in the case

of a severely mentally handicapped child, the entitlement to free primary education might last up to the age of 18, there was nothing

in the judgment to indicate that he was finding by implication that the constitutional right continued into “adulthood”, as found by

Barr J.

Since the other provisions of Article 42 were also relied on in the course of the arguments as throwing light on the nature of the

guarantee contained in s. 4, they should be set out in full:-

“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 as

established by the State.

3. (i) The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools

established by the State, or to any particular type of school designated by the State.

(ii) The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a

certain minimum education, moral, intellectual and social ...

5. 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.”

These Articles reflect a philosophy in which the State is seen as playing, in theory at least, a secondary role only in the provision of

education, the primary role being that of the parents. The qualification is important, since practice in this area had travelled far from

theory even at the time of the enactment of the Constitution. This is most graphically illustrated by the prominence given in the

Article to the right of parents to educate their children at home. In modern conditions, the number of parents who elect to educate

their children in this manner is a tiny minority, the vast majority obviously taking the view, apart from other considerations, that

learning to associate with other children outside the home at work and at play is an important feature of education. The practical

difficulties encountered by parents, who sincerely believe that they are acting in their children’s best interests in attempting to

provide such education in the home, are exemplified in the case recently decided by this court in Director of Public Prosecutions .v.

Best (2000) 2 IR 17.

In those schools and third level institutions where tuition and other fees are charged, the parents can be said to be providing, albeit

indirectly, the education of their children. However, since the mainstream of Irish education takes place in primary and secondary

schools and third level institutions, and not in the home, and is not provided by the parents save in the indirect manner indicated, the

thrust of these provisions of the Article is to ensure that the right of parents to choose the form of education in schools and colleges

which they deem most suitable to their own offspring is recognised and protected. In an age when there is increasing emphasis on the

autonomy of children, parental choice becomes of less importance as they become older: it remains, of course, of great significance

at the stage when children are not equipped to make the appropriate choices for themselves. It is probably unnecessary to add that,

however theoretical, in some respects at least, the philosophy underlying these provisions appears to be in modern conditions, they

must be fully upheld by the courts in any case where they become relevant.

It is, however, the case, in my view, that they afford little guidance to the appropriate construction of the opening words of Article

42.4 with which this case is centrally concerned. This is of some importance since a significant part of the argument in the case was

directed to a meticulous parsing of both the Irish and English texts of these provisions with a view to ascertaining whether they lend

support to the view that the only beneficiaries of the right acknowledged in those opening words are “children” who had not yet

reached the age of 18. As it happens, while it is not of critical importance in this case, those opening words contain no reference

whatever to children, whether in family units or otherwise, and do not differ substantially from the plain unvarnished text of the 1922

Constitution. It would also seem clear that the closing words, with their reference to “the rights of parents” were intended to qualify

the obligation on the State to give reasonable aid to other initiatives and to provide educational facilities themselves. As noted in

Crowley, the use of the words “provide for” in the opening words were sufficient to safeguard the rights of parents to have their

children educated in schools of their own choice rather than State schools.

It is clear, accordingly, that while the principal beneficiaries of the right to free primary education recognised and protected in Article

42.4 are children in family units, they were not intended to be the only beneficiaries. Children without parents, natural or adoptive,

whether they grow up in the care of institutions, foster parents or older relatives, are equally entitled to the right protected in Article

42.4. The issue with which the High Court and this court is concerned is whether the rights of the beneficiaries, whether they are

children in family units or otherwise, cease when they reach a particular age, irrespective of the fact that they might still be

reasonably regarded as being in need of primary education.

The next issue in the case is as to the form of relief granted by the High Court. Since the decision of this court in Byrne .v. Ireland

(1972) IR 241, difficulties in executing against any of the organs of the State have never been regarded as a ground for refusing relief

to a person whose constitutional or even purely legal rights have been violated by the organ in question. It is of interest to note, that

in his judgment in this court in that case, Walsh J. referred to the right acknowledged in Article 10 of the 1922 Constitution to free

elementary education as being one that was “clearly enforceable” against Saorstát Éireann, if no provision had been made to

implement that Article. While the learned judge refers elsewhere in his judgment to the possibility of a decree against the State being

executed by way of an order for mandamus, there is nothing to suggest that he would have regarded that as an appropriate remedy

against the Oireachtas, since that would clearly be in violation of the separation of powers. Relief of that nature could, however,

undoubtedly be granted against other organs of State, such as Ministers.

Where, however, the granting of the relief sought would trespass on the exclusive role of Dáil Éireann, as the popularly elected house

of parliament, in the raising of taxation and the appropriation of public monies, more difficult problems arise. Neither the High Court nor

this court has ever gone further than finding (in McKenna .v. An Taoiseach No. 2 (1995) 2 IR 10) that a declaration could be granted

that the expenditure of monies by the Oireachtas on an unlawful object - in that case the use of public funds to encourage a “yes”

vote in a referendum - was in violation of the Constitution. However, in that case, the court expressly refrained from granting an

injunction restraining the expenditure of the monies already voted and I think it is clear that this court would not grant mandatory

relief requiring the Oireachtas to provide funds for a particular purpose in order to uphold the constitutional or purely legal rights of

members of the public: see Brady and Others .v. Cavan County Council (1999) 4 IR 99.

That is not to say that where a plaintiff successfully claims that his constitutional rights have been violated by the State in the past

and will continue to be so violated in the future unless the court intervenes, the courts are impotent when it comes to the protection

of those rights. That is of particular relevance in a case such as the present where it is not suggested that it is beyond the financial

resources of the Minister to provide the facilities which the first named plaintiff requires, the situation that arose in Brady. As Lord

Browne-Wilkinson, speaking for the House of Lords, observed in R. .v. East Sussex County Council, exp. Tandy (1998) AC 714, where

a local authority contended that it lacked the resources to maintain home tuition for a schoolgirl suffering from a particular condition:

“My Lords, I believe your lordships should resist this approach to statutory duties. First, the County Council has as a matter of

strict legality the resources necessary to perform its statutory duty under s. 298. Very understandably it does not wish to

bleed its other functions of resources so as to enable it to perform the statutory duty under s. 298. But it can, if it wishes,

divert monies from other educational or other applications which are merely discretionary, so as to apply such diverted

monies to discharge the statutory duty laid down by s. 98.”

A fortiori those observations apply to the allocation by a Minister of resources sufficient to meet a constitutional obligation owed to a

particular person. In such cases, while in principle there is nothing to preclude the granting of mandatory relief directed to the

Minister concerned, it is appropriate, in my view, for the courts to presume that where this court grants a declaration that he or she

has failed to meet his or her constitutional obligations, the Minister will take the appropriate steps to comply with the law as laid down

by the courts.

As to the claim on behalf of Mrs. Sinnott, no authority has been cited for the general proposition that where the constitutional rights

of a member of a family have been violated, the wrongdoer must compensate not only the person concerned but also any other

member of his or her family, as constitutionally defined, in whom no independent right of action was vested but who suffered in some

sense because of the wrong done to the other family member. Such authority as exists would appear to suggest that no such cause

of action is known to the law.

Thus, in P.H. and Others (Infants) .v. John Murphy & Sons Ltd. (1987) IR 621, the plaintiffs’ father suffered severe personal injuries in

the course of his employment with the defendant at the defendant’s factory premises. Proceedings instituted on his behalf against

the defendant alleging that his injuries were caused by the defendants’ negligence were settled. The minor plaintiffs, suing by their

mother, instituted proceedings against the defendant claiming, inter alia, damages in tort and breach of constitutional duty for the

loss of the non-pecuniary benefits which the father of a family bestows on his children. The defendant denied liability and preliminary

issues were tried as to whether inter alia the plaintiff’s claim disclosed a cause of action against the defendant. In holding that the

defendants had not been guilty of any breach of a constitutional duty imposed on them either by virtue of Article 41.1 or Article 42,

Costello J. (as he then was) said:-

“[Article 42] contains an acknowledgment by the State that the Family is the primary and natural educator of the child and

under its provisions the State guarantees ‘to respect the inalienable right’ of parents to provide for the education of their

children. Certainly, in this case, Mr. H. is unable to exercise this right because of the fearful injuries he has sustained and his

children’s rights to be educated by their father (which I think are to be implied from this Article) have certainly been impaired

by the negligent act which caused those injuries. Whether they have been unconstitutionally infringed will depend on whether

the negligent act constituted a breach of constitutional duty imposed by this Article. I do not think it did. The State has given

a ‘guarantee to respect’ Mr. H.’s right to educate his children, but I do not think that by these words the rights which Mr. H.

enjoyed under this provision included an ancillary right not to be injured by a negligent act which interfered with his ability to

exercise his rights vis-à-vis his children. His children would not therefore enjoy any implied ancillary right that their father

would not be negligently injured. This being so the defendant’s negligent act did not infringe any of their Article 42 rights.”

In Mullally .v. Bus Éireann (1992) ILRM 722, the High Court (Denham J.) found that a plaintiff whose husband and children had been

involved in a serious bus accident, caused by the negligence of the defendants’ employee, was entitled to damages in respect of the

psychological damage she sustained as a result of having personally witnessed the appalling scene which followed the accident. That,

however, was not based on the constitutional right of the plaintiff to damages: it was expressly treated by the learned judge as an

appropriate development of the law of tort, similar to that which had taken place in England and Wales: see the decision of the House

of Lords in McLoughlin .v. O’Brian (1983) 1 AC 410 and in particular the speech of Lord Bridge in that case. It is accordingly of no

assistance in considering the claim made on behalf of Mrs. Sinnott in this case.

Conclusions

It is right to say at the outset that the posture adopted by the defendants in this case is, in purely legal terms at least, with which

this court is exclusively concerned, not easy to follow. They acknowledge that, by virtue of s. 7(1) of the 1998 Act, the Minister is

obliged

“to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a

person with a disability or who has other special educational needs, support services and a level and quality of education

appropriate to meeting the needs and abilities of that person ...”

While it is unnecessary, and indeed inappropriate, in the context of the present proceedings, to determine whether the expression “a

person with a disability or who has other special educational needs” is confined to children who have not reached the age of 18, it is

clear from the evidence in this case that the Minister, not surprisingly, takes the view that it is not so confined in its application and,

specifically, that the plaintiff is entitled to the benefit of this provision.

The claim made on behalf of the plaintiff is, accordingly, resisted by the Minister solely on the ground that he was not entitled to

those services as a matter of constitutional right beyond the age of 18. However, whether the plaintiff is entitled to them as a matter

of legal or constitutional right would, it might be thought, be a matter of indifference to the Minister, unless he proposed at some time

in the future to withdraw them or to urge the Oireachtas so to do, a course of action which he predictably assures the court he does

not contemplate. The same considerations would apply to those suffering from severe mental handicap who are in the same position

as the plaintiff.

The Minister’s concerns, accordingly, arise because of what are seen as the more far-reaching implications of adults, as distinct from

children, being entitled to free primary education.

It is undoubtedly the case that a significant number of children leave the primary system without having achieved the minimum level

of education which it is designed - and constitutionally mandated - to impart. But that is not to say that the State has, in the case

of those children, failed in its constitutional duty to them to an extent which requires intervention by the courts. The failure may be

due to many causes, including the inability of the children to benefit to that minimum extent from any system of primary education,

however properly structured and however ample the resources provided by the State may be. The learning difficulties of the children

concerned may be such that the minimum result can never be achieved in their case. Moreover, defects in the system itself -

whether they derive from overcrowded classrooms, inadequate school buildings or any other cause - which may similarly result in a

failure to achieve the minimum standard are not necessarily remediable by the courts. That would involve the judicial arm usurping the

function of the Oireachtas and the Executive in the proper distribution of the resources available to the State, an issue to which I will

return. It is sufficient at this point to say that it is an illusion to suppose that, because the High Court in this case has found that the

plaintiff’s entitlement to free primary education extends beyond the age of 18, the courts will be obliged at some stage to treat other

adults as enjoying an equivalent right, where their “need” for primary education results from an inherent inability to benefit from such

education in their childhood or from the defects in the system provided by the State to which I have referred. None of these

considerations arise in the present case: it is solely concerned with the constitutional rights of the plaintiff and Mrs. Sinnott, although

the findings of the High Court, in so far as they have not been the subject of an appeal, and the findings of this court will necessarily

extend to persons in the same situation as the plaintiff and Mrs. Sinnott.

In considering the contention advanced on behalf of the plaintiff that his right to free primary education had not come to an end at

the time of the hearing in the High Court and would continue into the future so long as he reasonably required such education, the

sequence of events in this case is of some importance.

As already noted, in the defence to the claim of the plaintiff delivered on the 11th November 1997 when he was aged 20, the

defendants denied that they had deprived the plaintiff of any of his constitutional rights pursuant to Articles 40 and 42 of the

Constitution. At the hearing in the High Court when he was aged 22, the defendants, while accepting that he was entitled to free

primary education suitable to his special needs up to the age of 18, denied that he had not been afforded such education and further

denied that his right to such education continued beyond the age of 18. Both those propositions were rejected by the learned High

Court judge who, as already noted, found the plaintiff entitled to general damages in respect of the failure of the first named

defendants to provide him with the appropriate primary education up to the date of the hearing in the High Court.

There is, accordingly, a finding by the High Court in this case that the plaintiff was entitled as a matter of constitutional right to free

primary education suitable to his special needs up to the date of the hearing in the High Court and that his right to that education

had been violated by the defendants. On the basis of that finding, the plaintiff was awarded damages, not simply in respect of the

period up to age 18, but also in respect of the period from 18 to 22. It is not suggested that there was any basis on which he could

have been awarded damages in respect of the period from 18 to 22 other than his entitlement to free primary education under the

Constitution in respect of that period.

It must be borne in mind that in deciding not to appeal from the finding of the learned High Court judge that the plaintiff was entitled

to damages in respect of the period up to the hearing of the action, and not simply in respect of the period until he reached the age

of 18, the defendants are not properly described as making a “concession” (for whatever reason) to the plaintiff. Since it has not

been appealed from - or, to put it more accurately, the appeal originally lodged in respect of it has not been pursued in this court -

the careful and comprehensive judgment of the High Court, delivered after a lengthy hearing in which all the factual and legal issues

were exhaustively ventilated and analysed, constitutes the law in this country unless and until another judge of the High Court or this

court takes a different view of the law. The High Court is the only court with full original jurisdiction in all constitutional issues in this

jurisdiction and its judgments are not to be treated as in some sense qualified as authoritative statements of the law because they

have not yet been reviewed by this court.

However, if it were indeed the case that the plaintiff was entitled to free primary education on that basis until the age of 22, there

would be insurmountable difficulties confronting the State in arguing that free primary education is available under the Constitution

only to children and not to adults. Hence, they have sought to argue in this case that, notwithstanding the unappealed award of

damages, his constitutional entitlement ceased when he reached the age of 18.

That approach to the case by the State gives rise to two possible consequences. It is accepted that there are a significant number

of persons in the same position as the plaintiff who, as a result of the High Court judgment and irrespective of what is decided by this

court on this appeal, may also be entitled to damages because of a similar breach of their constitutional rights. A finding by this court

that the plaintiff’s entitlement came to an end at age 18 would seem to have as its necessary consequence awards of damages on a

less favourable basis to the plaintiffs concerned than the unappealed award of damages in this case. It may be that plaintiffs in such

a situation might be in a position to resist such a clear inequality of treatment by the court in accordance with the decision of this

court in McMahon .v. Leavy (1984) IR 525. It would, in any event, be pointless and inappropriate to prejudge in any way what might

happen in cases which are still to be heard. Nor would it be fair to assume that the objective of the State, in adopting this course,

was to achieve such a result.

The reason for the strategy adopted by the State is perfectly clear. It is evident from the correspondence between the Chief State

Solicitor and the solicitors for the plaintiff, to which I have already referred - and it is unnecessary to refer to any other materials

such as statements made by public figures who are not parties to these proceedings - that the first named defendant is unwilling to

be seen as seeking a reduction in the award of damages to the plaintiff and, for that reason, has declined to adopt the

straightforward course of simply appealing from so much of the award of damages as related to the post 18 period. In the result, he

invites this court to treat a finding by the High Court judge as wrong in law, which he has already accepted, by declining to appeal,

as being right in law. To accept that contention as correct involves a feat of mental legerdemain of which I am incapable.

It may be suggested that this is not, in the context of these proceedings, a matter of any great moment, since the Minister is

naturally concerned that the law should not be left in a state of uncertainty in so important an area, while at the same time not being

prepared to disturb the award of damages in favour of the plaintiff. But that would be to have insufficient regard to an important

feature of the jurisprudence of this court. On this aspect of the case - I leave aside entirely the issues as to the relief actually

granted in the High Court and the award of damages to Mrs. Sinnott in respect of which the Minister has pursued an appeal to this

court as is his constitutional right - the Minister is seeking a determination in respect of a matter which is moot. He accepts that the

plaintiff is entitled to damages in respect of the period up to age 22 and, by implication, that his constitutional entitlement to free

primary education lasts beyond the age of 18 for as long as the plaintiff is in need of what is admitted to be a form of primary

education. He accepts that the necessary facilities would continue to be available to the plaintiff within the framework of the 1998

Act for so long as the plaintiff requires them. But he wishes to obtain a ruling from the court that, irrespective of what may be the

position in this case, the entitlement to free primary education under the Constitution is limited to children and does not extend to

adults.

This court, and its predecessors, has in general declined to grant advisory judgments of that nature to any party. Such precedents as

exist for such a course are not encouraging. In Attorney General .v. Southern Industrial Trust Ltd. and Another (94 ILTR 161), Lavery

J., speaking for the former court, said that

“The parties have by a series of admissions (some of which might well have been withheld) presented net issues for the

decision of the court. Their purpose clearly is to get a decision not merely in the particular case but one of general

application. It was questionable whether the court should entertain a case so presented ...”

It was, accordingly, only with misgivings that the court proceeded to determine the appeal in that case. Unlike the present case,

however, the strategy in that case was the result of an agreement between the parties: in the present case, the plaintiff vigorously

objected to the course being taken by the defendants.

Even if that part of the judgment which found the plaintiff entitled to damages in respect of his entitlement to free primary education

up to the age of 22 had been the subject of an appeal to this court, which it has not, I would have concluded that the judgment was

correct in point of law and should be upheld by this court. In this connection, I do not think that any useful guidance can be derived

from dictionary definitions as to what is meant by the expression “primary education”. Its meaning, in the vast majority of cases, is

clear. It denotes the stage of a child’s education lasting from ages six to twelve and does not extend to the kind of training and

human development that takes place from birth to age four. The latter normally takes place in the home and not in a school setting.

The primary school curriculum in this country has since 1831 had as its central component education in literacy and numeracy, and

now includes as already noted, in addition, mathematics, social and environmental studies, music and physical education. In addition,

Irish is a compulsory subject in the primary school curriculum. It should be noted, however, as pointed out in Best that the curriculum,

as it now exists, represents more than the “minimum education, moral, intellectual and social” which it is the State’s duty to ensure

that children receive pursuant to Article 42.3.2°.

That is not the form of “primary education” to which the plaintiff was found to be entitled in O’Donoghue by O’Hanlon J. and to which

Barr J. found the plaintiff in this case to be entitled. The latter’s needs at this stage of his life still do not extend significantly beyond

the basic skills which more fortunately endowed children acquire in the home between birth and four.

The evidence in this case, which is not challenged on behalf of the defendants established that the need for this form of education

continues into what, in other people, would be regarded as “adulthood”. As Mrs. Osten, an acknowledged expert, put it in her

evidence

“... The feeling is that as long as you maintain a certain level of stimulation and care and learning where the individual is

actively involved in their day to day process that they will do well, but I think in Jamie’s case if the plan for him to act stops

you will again see regression. So an ideal situation for him in adulthood would be to be an active, particularly a physical,

programme where he has to move and that that be maintained as long as his health allows.

133Q. Mr. Justice Barr: Right through life in other words?

A. Right through life ...” [Transcript, Day 3]

In O’Donoghue, O’Hanlon J. pointed out that primary education for the category of the severely mentally or physically handicapped

requires, in the legal context, a new approach and, in particular, so far as its duration is concerned, the process should, ideally,

continue as long as the ability for further development is discernible. While Professor Hogg in that case suggested the age of 18 as

realistic, the evidence in this case, so far as the plaintiff is concerned, indicated a longer time scale than 18.

Even if it were open to this court to treat as incorrect the finding in the High Court that the plaintiff was entitled to free primary

education up to the age of 22, the defendants would encounter serious difficulties in acknowledging the constitutional right of the

plaintiff to free primary education up to the age of 18, because of his special needs, but not thereafter. If a person is in receipt of

education on the eve of his eighteenth birthday, it is in the vast majority of cases a total misuse of language to describe that as

primary education in the normal sense. However, it is properly regarded as primary education in the case of a person such as the

plaintiff, even though in chronological and physical terms he has ceased to be a person who would normally be regarded as being in

receipt of such education.

If it is the law that a person in the position of the plaintiff ceases to be entitled to free primary education at the stage in his life when

he becomes an adult, it is for the courts alone, in the absence of any specific age limit to be found in Article 42, to determine when

that stage would be reached. The contention on behalf of the plaintiff is that he has not yet become an adult in terms of his

educational needs and may never reach that stage. The contention on behalf of the Minister is that the age is fixed at 18 years.

While that, as it happens, is the age fixed by legislation as the age of majority for a number of important legal purposes, it was not

within the competence of the Oireachtas to subject the plaintiff’s constitutional right to such an age limitation and they have not

attempted so to do in the 1998 Act. A fortiori, it is certainly not the function of the Minister to determine the age at which the

constitutional right of a person in the position of the plaintiff ceases. As the whole history of this litigation from beginning to end

eloquently demonstrates, that is the function of the courts and the courts alone.

All those who survive that period of their life, which is properly and unarguably described as childhood, begin to pass certain legal and

societal milestones. At the age of 14, they are capable of committing criminal offences.

At the age of 16, they are no longer required to attend school and may, if the opportunity arises, enter the adult world of work. (The

school leaving age was fixed at this level by s. 2(1) of the Education (Welfare) Act 2000.) At the age of 17, their parents cease to be

responsible for their welfare. (It should be noted, however, that s. 2(1) of the Child Care Act, 1991, defines a “child” as “a person

under the age of 18 years other than a person who is or has been married”.) Between the ages of 15 and 17, they are classified by

the criminal law as “young persons” and may suffer what amounts to a form of imprisonment. At that stage, consensual sexual

intercourse with them by a person of the same age or older ceases to be a criminal offence. At the age of 18, they are entitled to

marry, to vote and to incur legal obligations under the civil law. Although the age of 21 is no longer the significant legal watershed

that it once was, the custom of treating it as a form of entry into adult life does not seem to have entirely vanished. The Constitution

itself does not recognise persons who have not reached the age of 35 as of sufficient maturity to be eligible to be President of

Ireland.

Where in this spectrum can it be said with any semblance of truth that the plaintiff passed from childhood to adulthood? So far as the

evidence in this case goes, virtually none of these stages is of any significance in his case. He is one of a relatively small category of

people in our society who, because of their mental handicap, can never enjoy life in all its diversity and richness but to whom at least

a measure of happiness may be available. The uncontested evidence in this case is that, to attain even that low plateau, the plaintiff

requires continuing access to what, in his case, is education, as defined by Ó Dálaigh C.J., albeit often extremely basic in character.

No principled basis exists either in law or in the evidence for the contention advanced by the defendants that a person in his position

ceases to be in need of primary education at age 18, at age 22 or at any age in the future which can now be identified with any

precision.

I am accordingly satisfied that the plaintiff was entitled to a declaration that the first named defendant was obliged by Article 42.4 of

the Constitution to provide for free primary education for the plaintiff appropriate to his needs for as long as he was capable of

benefiting from the same. While counsel on his behalf are correct in their submission that, among what might broadly be described as

the social services, education is uniquely under our constitutional arrangements the only one in respect of which the State are

subject to a specific obligation in relation to its provision, it by no means follows, as was also urged on his behalf, that this

necessarily involves the courts in the continuing supervision of its provision in any particular case. Where, as here, the State have

conspicuously failed in their constitutional obligation to provide the education to which a citizen is entitled the courts will ensure that

the right is given full legal effect by whatever remedy is appropriate. The next question that arises in this case is as to whether the

form of relief granted in the High Court was appropriate in the light of the conclusions at which I have arrived.

I have already pointed out that it is by no means clear from the terms of the judgment that the trial judge envisaged the granting of

an immediate mandatory injunction. In practice, it may not be of any great significance whether the relief granted is by way of a

declaration or a mandatory injunction: the respect each of the three great organs of State owe to one another requires obedience to

the order of this court or the High Court, whether it takes the form of a declaration or a mandatory injunction. The raising of taxes

and the appropriation of public monies being quintessentially matters for Dáil Éireann alone, however, I am satisfied that the

appropriate form of relief in this case was a declaration rather than a mandatory injunction.

I am also satisfied that the purported retention by the High Court of jurisdiction in this case after it had delivered what was in every

respect a final judgment, subject only to review by this court on appeal, was an erroneous exercise of its jurisdiction. I can fully

understand the misgivings of the trial judge in the light of the previous conduct of the defendants in this case but, despite the

strenuous submissions to the contrary on behalf of the plaintiff, I have no doubt that the case should have been approached on the

basis that, if the first named defendant was at any stage in the future found by the High Court to have been in breach of his or her

obligation, the powers of the court to ensure the upholding and vindication of the plaintiff’s rights would, in the famous words of Ó

Dálaigh C.J. in the State (Quinn) .v. Ryan (1965) IR 70 be “as ample as the defence of the Constitution requires.”

In the judgment which he will deliver in this case, Hardiman J. cogently demonstrates that the approach which the court was invited

to adopt on this issue is fundamentally at variance with the doctrine of the separation of powers which is at the heart of our

constitutional structures. In particular, it would violate the exclusive role of the legislature and the executive in the distribution of the

nation’s wealth. I entirely agree with what he says and have nothing to add on this matter. I would, however, also wish to make it

clear that I fully share his reservations as to the criticism, which is at least implicit in the judgment under appeal, of the decision by

the State to appeal the judgment in O’Donoghue. That, as he points out, is the constitutional entitlement of the State as much as of

any other person and anything I have said as to the inconsistency of the posture adopted by the defendants in this case on the

hearing of the appeal should not be taken as questioning in any way the right of the defendants in this case under the Constitution to

appeal from any part of the judgment and order of the High Court.

As to the claim of Mrs. Sinnott to general damages for the breach of her constitutional rights alleged to have flown from the admitted

breach of the plaintiff’s rights, I am satisfied that this claim is wholly unsustainable. Parents who find themselves in the position of

Mrs. Sinnott naturally evoke our respect, admiration and compassion, but those are not grounds in law for an award of damages. If

Mrs. Sinnott is to be entitled to damages, it would follow inexorably that every member of a family in the constitutional sense would

also be entitled to damages where another member of the family suffered personal injuries affording him or her a cause of action in

tort, unless the injury was so trivial that the resultant anxiety caused to the other family members was transient and of such little

moment as to justify its being disregarded. In every other case, from a moderate whiplash injury to the most massive quadriplegia,

since the constitutional rights of the plaintiff to his or her bodily integrity would unquestionably have been violated, the other family

members would be entitled to damages if they could plausibly assert that they suffered some degree of anxiety as a result of the

person’s injuries. That is plainly not the law.

Confronted with that difficulty, counsel for Mrs. Sinnott valiantly attempted to argue that the actions of the first named defendant in

this case were in some sense a violation of her right to choose the form of education appropriate to her child under Article 42. That

again is a wholly unsustainable proposition. The parental right of choice as to the nature of the education which their children will

receive is, of course, guaranteed by Article 42, but that was not what was being frustrated by the actions of the defendants in this

case. It was the right of the plaintiff to a form of primary education appropriate to his needs which was being denied and for that, as

a result of the decision of the High Court, he was fully and properly compensated. Had the appropriate facilities which the plaintiff

required been available for him free of charge in a single institution in the Cork area capable of meeting his special needs, Mrs. Sinnott

would have had no complaint either in law or in fact and there is not the slightest reason to suppose that she would have instituted

proceedings on her own behalf against the defendants.

I would allow the appeal against the award of general damages to the Mrs. Sinnott.

In the result, I would allow the appeal in the first case and vary the order of the High Court by deleting paragraphs (2), (4) and (5) of

the order and substituting therefor a declaration that the first named defendant is obliged to provide for free primary education for

the plaintiff appropriate to his needs for as long as he is capable of benefiting from same. In the second case, I would allow the

appeal and substitute for the order of the High Court an order dismissing the plaintiff’s claim save in respect of the sum of £15,000 in

respect of special damages.