IESC 63 · Supreme Court

[2001] IESC 63

THE SUPREME COURT

Record No. 326/2000

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

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

DEFENDANT/APPELLANT

THE SUPREME COURT

Record No. 327/2000

BETWEEN/

KATHRYN SINNOTT

PLAINTIFF/RESPONDENT

and

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANT/APPELLANT

Judgment of Mrs. Justice Denham delivered on the 12th day of July, 2001.

1. Two Appeals

The appeals in the above entitled cases were taken together. In both cases the Minister for Education, Ireland and the Attorney

General, hereinafter referred to as the State, appealed against a decision of the High Court. Jamie Sinnott, the plaintiff/respondent in

the first action, hereinafter referred to as Jamie, was born on 11th October, 1977 and is profoundly mentally disabled. Kathryn

Sinnott, the plaintiff/respondent in the second action, is the mother of Jamie, and is hereinafter referred to as Mrs. Sinnott.

2. The High Court

In a judgment delivered on 4th October, 2000 the High Court (Barr J.) determined the cases in favour of Jamie and Mrs. Sinnott. The

learned High Court judge treated both of these actions as one and found:

“Jamie Sinnott was born on 11th October, 1977. He is now almost 23 years of age, the third child of nine. Mrs. Sinnott, his

mother, is separated from her husband for a number of years and has been Jamie’s primary carer all his life.

At birth he was a healthy baby and developed normally for about the first four months. thereafter he began to develop autistic

symptoms.”

He held that Jamie had a right to have primary education provided for him with no age limitation. He stated:

“There is nothing in Article 42, s. 4 which supports the contention that there is an age limitation on a citizen’s right to ongoing

primary education provided by or on behalf of the State. It is evident that the right to primary education would be

fundamentally flawed if narrowly interpreted as ending at an arbitrary age - eighteen years.”

On 31st day of October, 2000 the High Court declared:

“The Court doth declare that the first named Defendant in failing to provide for free primary education for [Jamie] appropriate to

his needs as a severely autistic child with related profound mental and physical handicap and in discriminating against [Jamie]

with respect to the provision of appropriate educational facilities viz-à-viz (sic) other children has deprived [Jamie] of his

constitutional rights pursuant to Articles 40 and 42 of the Constitution and in particular Article 40.1 and Article 40.3.1° and

40.3.2° and Article 42.3.2° and Article 42.4”.

And the court ordered, inter alia:

(1) that Jamie do recover against the [State] the sum of £222,500.00 damages for breach of [Jamie’s] constitutional rights

negligence and breach of duty the aforesaid sum being computed as follows

(a) General damages to date - £90,000.00

(b) General damages for the future - £25,000.00

(c) Special damages for a 30 month period commencing on the 1st November 2000 to 30th April 2003 in respect of ABA

home programme - £70,000.00

(d) Special damages in respect of ancillary services for a 30 month period commencing on 1st November 2000 to 30th

April 2003 - £37,500.00

(2) that the first named Defendant do forthwith provide for free primary education for [Jamie] appropriate to his needs for as

long as he is capable of benefiting from same.

(3) that an application be made forthwith to have [Jamie] taken into Wardship.

(4) (i) that [Jamie] be provided with the necessary funding for the applied behavioural analysis home based programme for

sufferers from autism for two and a half years estimated at £28,000 per annum subject to review on completion.

(ii) that [Jamie] be provided with the necessary funding for home based ancillary services, speech, physiotherapy,

occupational and music therapies and medical care estimated at £15,000.00 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 [Jamie] to re-enter or to

apply in the interim in that regard.

In relation to Mrs. Sinnott the High Court ordered:

“The court doth declare that the first named defendant in failing to provide for free primary education for [Mrs. Sinnott's] son,

Jamie Sinnott appropriate to his needs as a severely autistic child with related profound mental and physical handicap and in

discriminating against [Mrs. Sinnott’s] son with respect to the provision of appropriate educational facilities vis-à-vis other

children has deprived [Mrs. Sinnott] of her constitutional rights pursuant to Articles 40.1, 40.3.1 and 2 and 41.2.1 and 41.2.2,

42.1 and 2 and 3 and 4 of the Constitution.”

It was ordered that Mrs. Sinnott do recover against the State the sum of £55,000 damages for breach of her constitutional rights,

negligence and breach of duty (being the sum of £40,000 in respect of general damages herein and the sum of £15,000 in respect of

special damages herein), that the first named defendant do forthwith provide for free primary education for Jamie appropriate to his

needs for as long as he is capable of benefiting from same, and that the mandatory injunction granted herein be reviewed in April

2003 with liberty to the plaintiff to re-enter or to apply in the interim in that regard.

The learned High Court judge summarised Mrs. Sinnott’s constitutional rights vis-à-vis the State as follows:-

“(i) She is and has been at all material times a de facto single parent and head of the Sinnott family of which she is the primary

carer. Her position and that of the family is specifically recognised in the Constitution. The State guarantees to protect the

Family in its constitution and authority (Article 41.s.2). In O’B v. S 1985 I.L.R.M. 86 the Supreme Court held that the ‘provisions

of Article 41 create not merely a State interest, but a State obligation to protect the Family.’

(ii) Mrs. Sinnott and her family (in particular her son Jamie) are entitled to equality of treatment by the State and ought not to

be deprived without just cause of basic advantages which the State provides for others (Article 40 s. 1 ‘All citizens shall as

human persons, be held equal before the law’)

(iii) The State shall provide for free primary education - and when the public good requires it shall provide other educational

facilities and institutions (Article 42, s. 4). This is a right for the benefit of the Family as a unit as well as for the individual

members thereof. If the State fails in that duty the burden of providing primary education for a child of the Family thus deprived

will in the ordinary course devolve on the parents - in the present case on the mother as de facto sole parent.

(iv) The State has failed to honour its foregoing constitutional obligations to Mrs. Sinnott and her son, Jamie, the foreseeable

consequences of which have been inter alia, that she has had imposed on her an inordinate burden, which has dominated her

life, of endeavouring to provide for the education of her profoundly disabled child. .

(v) Although the defendants’ argument regarding retrospection which I have already addressed in the context of Jamie Sinnott’s

claim is in my opinion not well founded the period of damage for which Mrs. Sinnott is entitled to compensation differs from that

of her son where infancy and mental incapacity are relevant factors in the context of limitation of action. Having regard to the

judgment of the Supreme Court in McDonald’s case it follows that Mrs. Sinnott’s claim is analogous to a claim for personal injury

in tort and is subject to the limitation period of three years as provided in the Act of 1957 in that regard. However, unlike a

claim for personal injury arising out of, for example, a traffic accident where the date of the precipitating event determines the

limitation period, the wrong done to her is a continuing one which existed from 1981 and has gone on since then. Her action

commenced on 17th December, 1996. Accordingly she is entitled to damages for the harm done to her from 17th December,

1993 and into the future.”

The learned trial judge found:

“The breach of duty of the State in failing to honour its constitutional obligations to Jamie and to her has given rise to a

corresponding loss suffered by his mother and primary carer which also will have some on-going effect into the future. She has

had the anguish of seeing substantial progress made by Jamie frittered away through the failure of the State over and over

again to respond meaningfully to his needs. She has seen time, a vital commodity for Jamie, squandered by bureaucracy. It

appears that she has worn herself quite literally to the bone struggling on behalf of her son. Her heroic efforts to have

education and care provided for him have dominated her life to a degree far greater than in all probability would have been the

case if the State had honoured its obligations to Jamie and to her. She has been subjected many times over the years to the

lack of understanding of an apparently disinterested bureaucracy. She has had to contend with the distress and indignity of

having to deal with various problems of a child, now a man, which, if the State had provided appropriate services when

required, probably would have been resolved many years ago - not least of those are his present lack of mobility, persistent

frequent drooling and the continuing need for diapers at the age of 23 years. I have no doubt that all of these elements of

avoidable anguish in Mrs. Sinnott’s life are consequences of the State’s breach of duty in failing to honour its constitutional

obligations to Jamie and to her. She has responded to that failure with indefatigable love, courage and devotion but at great

personal cost. In that regard she is following in the footsteps of Mrs. Marie O’Donoghue and Mrs. Annie Ryan who gave evidence

at this trial and many other heroic parents of grievously disabled children who have had to contend with similar difficulties. The

State’s breach of duty in failure to honour its constitutional obligations has also created distress which for the reason explained

in Jamie’s case will continue indefinitely, albeit to a lesser degree, even if his future education is reasonably successful. As to

damages; I note that specials (which include Jamie’s case also) have been agreed at £15,000.

It is difficult to assess compensation for a devoted mother’s overlay of distress and anguish in a case like this and for the

burden of unnecessary work inflicted on her over the years both as a carer and in her struggle trying to achieve Jamie’s rights

from a reluctant beaurcracy(sic). If, like him, Mrs. Sinnott was entitled to compensation from October, 1981, I would have

awarded her general damages of £80,000 from then until now. However, as she is entitled to compensation only for the wrong

done to her from 17th December, 1993, there must be a substantial reduction in that amount. She is entitled to a modest sum

for probable continuing distress in the future arising out of the loss of time which militates against Jamie making the degree of

progress which he probably would have made if he had received from the State early primary education and training. That

situation casts at least a minor cloud over Mrs. Sinnott’s future (including ongoing avoidable work) which ought not to be there

and for which in my opinion she is entitled to compensation.

I assess damages for her as follows:

Agreed special: £15,000

General damages from 17th December 1993 to date: £30,000

General damages in the future: £10,000

Total: £55,000”

3. Facts

The facts are not in issue on these appeals. The State has taken no issue on the findings of fact of the learned High Court judge.

Thus the facts as found by the High Court are the basis for the decisions on the law and the Constitution in these cases.

The State has undertaken to pay all costs of Jamie and Mrs. Sinnott in these proceedings before the Supreme Court and in the

proceedings before the High Court. The State has agreed to pay the general damages awarded to Jamie and the education as ordered

for three years and the special damages to Mrs. Sinnott irrespective of the outcome of the appeals. The State has accepted that

they were in breach of Jamie’s rights when a child. There were discussions as to whether this appeal was in fact a moot in lieu of the

stance of the State. However, in view of the important legal issues at stake, the appeal proceeded. Consequently this appeal is an

appeal only on certain issues of law and the Constitution.

4. Constitution of Ireland, 1937

The relevant articles of the Constitution of Ireland, 1937 are as follows:

Article 40.1:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity,

physical and moral and of social function.”

Article 40.3.1:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen.”

Article 40.3.2:

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name, and property rights of every citizen.”

Article 41:

“41.1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral

institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

41.1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of

social order and as indispensable to the welfare of the Nation and the State.

41.2.1 In particular, the State recognises that by her life within the home, woman gives to the State a support without

which the common good cannot be achieved.

41.2.2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to

engage in labour to the neglect of their duties in the home.

41.3.1 .The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and

to protect it against attack.”

Article 42:

“42.1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect

the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual,

physical and social education of their children.

42.2 Parents shall be free to provide this education in their home or in private school or in schools recognised or

established by the State.

42.3.1 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to

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

42.3.2 The State shall, however, as guardian of the common good, require in view of actual conditions that the children

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

42.4 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.

42.5 In exceptional cases, where the parents for physical or moral reasons fail in the 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 to the natural and imprescriptible rights of the child.”

5. Submissions

Counsel for the State, Mr. Eoghan Fitzsimons, S.C., presented full written submissions and in addition submitted orally that there were

five questions to be considered on this appeal. These were as follows:

1. Does the Constitution of Ireland afford a constitutional right to education to adults?

2. Does the right to primary education envisaged by Article 42.4 of the Constitution of Ireland envisage a right to education for

life?

3. Does a judge of the High Court have the right to formulate and direct the application of future policy in relation to

educational needs?

4. Can a judge seek to award damages twice arising from the same cause of action?

5. In relation to the mother, does there exist a collateral constitutional right vested in individuals who suffer harm as a result of

breaches of constitutional rights of others?

The State accepted that there was an obligation to provide for free primary education but submitted that it ceased when Jamie was

eighteen years of age. Whilst the High Court has made an award of general damages and special damages and provision for education

for the next three years, which the State has agreed to pay, it has done this on a ‘without prejudice’ basis. Thus while the education

for Jamie will proceed until 2003, as a matter of law the State submitted that Jamie’s right exists only to the age of eighteen.

The State accepted that a person such as Jamie needs education for life. However, the State submitted that, the Constitution does

not make provision for free primary education after the age of eighteen. The State submitted that while eighteen is an arbitrary age,

it is consistent with the Constitution. Furthermore, it was argued that Article 42 provides for the education of children not the

education of adults, that Article 42 cannot be construed in isolation, and in fact that it was stretching its interpretation to run it to

the age of eighteen.

Counsel for the State informed the court that since the decision of the High Court the State has taken action to provide new support

services for children with autism and a task force has been set up. It was submitted that the State had responded to the judgment.

Counsel for Jamie and Mrs. Sinnott, Mr. Dermot Gleeson S.C., presented full written submissions and submitted orally seven points, as

follows:

1. The State has said that it would pay the damages on an ex gratia basis. However, the general damages awarded for the

delay in getting education was made on the premise of the two and a half years’ intensive education ordered and a potential

arrangement for the future being put in place in 2003. He submitted that Jamie’s constitutional rights were infringed and that he

is entitled to damages insofar as they flow from that fact. Counsel submitted that Jamie was entitled to the full order of the

High Court and that if he were not to receive it then he was entitled to more future damages. Counsel pointed out that the

State had conceded that it had violated Jamie’s constitutional rights and had conceded damages, therefore, he argued that,

Jamie should get damages as a matter of law and not ex gratia.

2. Counsel stressed the particular nature of the obligation established under Article 42 of the Constitution. He submitted that

there is a mandatory spending obligation under Article 42 that gives it a unique character that sets it aside from all other

personal rights provisions of the Constitution. Article 42.4 sets this part of national expenditure on a plane above and apart from

a whole range of expenditures that we now consider at the core in our nation. Counsel submitted that the language of Article

42.4 is unique. He submitted that the vast majority of choices as regards spending are political issues and that the courts have

no place in the making of such choices. However, he argued, that in the Constitution of 1937 the people made a promise, a

promise for future generations, that there would be free primary education.

3. Counsel addressed the nature of education. In this case it was conceded by the State that what Jamie was receiving now

was education. The education that Jamie gets is simple yet complicated. He is taught simple things. However, teaching him is

complicated. He is taught how to get out of a wheelchair, he is given toilet training, he is taught not to drool. Such simple

matters are taught to other children pre-school by their parents. However, counsel submitted that for handicapped children

these social skills are part of their education. Further, this education has to be reiterated all the time. Whereas Jamie can learn

to walk if it is not continuously reinforced he regresses.

Counsel admitted that there is not the remotest chance of Jamie reaching elementary education. It is a question of keeping up

achieved learning: how to walk, toilet training, signal he has a headache, signal he is thirsty, etc. This training needs to

continue for the rest of his life. It is very basic, physical and social. It is education to his capacity. It has to do with human

dignity, happiness, comfort. This is an education that never ends. Counsel submitted that the nature of the education was not

in issue in this case.

4. Counsel considered cases which have endorsed the power of the courts to intervene where constitutional rights have been

violated.

5. Counsel, while accepting that mandatory orders are exceptional, submitted that the High Court was faced with such an

exceptional case. Counsel submitted that the learned High Court judge was addressing an acknowledged breach of

constitutional rights in a person of unsound mind who had received only three years’ education in twenty-two years; that the

State had no facility to access or address the son’s need, at that time. All were agreed that any further delay in commencing

education would be very damaging. Counsel submitted that the State had consistently dragged its feet, no-one in COPE had

any training to deal with Jamie, yet COPE was the best available in Cork. The State had in one other case consented to a

particular type of training, the ABA envisaged in this case. It was submitted that during the trial the State had for the first time

in twenty years produced an individual education plan for Jamie. Counsel submitted that its inadequacy and incompetence had

led to it being condemned and treated with dismay by all experts. At the conclusion of the trial the State were still arguing that

Jamie was not autistic. Counsel submitted that the home based ABA recognised programme was the only viable programme

presented to the court. Thus, he submitted, this was an exceptional case requiring a mandatory order such as that made.

6. Counsel addressed Mrs. Sinnott’s case. He referred to the summarisation of her position by the learned trial judge and he

referred to the findings of the learned High Court judge. Mr. Sreenan, S.C., counsel for Mrs. Sinnott and Jamie, submitted that

the State now submitted that she had no constitutional rights. He submitted that this had not been pleaded, that her rights

were not disputed in the High Court, that the case was made on duplicity in the High Court.

7. Counsel then drew conclusions and argued that the court should uphold the learned trial judge on the issue of the

entitlement to have free primary education provided to adults, sought that the mandatory order be upheld in the exceptional

circumstances and submitted that the appeal against the decision in Mrs. Sinnott’s case be dismissed.

6. Jamie’s Case

The State has conceded that Jamie had a right to have the State provide for free primary education throughout childhood. The State

has conceded that it has breached Jamie’s rights. The State has agreed to pay the general damages and education for the three

years ordered for Jamie by the High Court and has undertaken to pay all the costs of the proceedings in the High Court and Supreme

Court.

The State submitted that Jamie’s right to free primary education exists only until he is an adult. The case was submitted that

eighteen is the age at which a child becomes an adult. Consequently, it was submitted, the right to free primary education ceases

when a person achieves the age of eighteen. On the other hand counsel for Jamie submitted that the right to free primary education

is a promise open to all citizens with no time limitation.

Thus the issue for determination on this appeal is whether the right to the provision of free primary education under Article 42.4 of

the Constitution of Ireland is a right given to children or to all citizens irrespective of age. If it is a right only for a child, then the

question is at what age does the right cease.

The State shall provide for free primary education: Constitution of Ireland, Article 42.4. This is an obligation expressly stated in the

Constitution. The nature of primary education has been the subject of previous cases: In Re Article 26 of the Constitution and the

School Attendance Bill, 1942 [1943] I.R. 334; Ryan v. The Attorney General [1965] I.R. 294; Crowley v. Ireland [1980] I.R. 102;

O’Donoghue v. The Minister for Health [1996] 2 I.R. 20; O’Shiel v. The Minister for Education [1999] 2 I.R. 321; Director of Public

Prosecutions v. Best [2000] 2 I.L.R.M. 1. The nature of primary education is not in issue in this case. The State has conceded that

the education which Jamie is receiving is primary education. Whether or not the education is primary education is not a matter for

analysis or decision.

The issue for determination is the age to which a person is entitled to the provision of free primary education, whether the

entitlement is for life or for childhood. It is a matter of construing the Constitution to determine the age ambit for which free primary

education is provided. Does it exist for children only? Does it exist for people of all ages?

Article 42.4 of the Constitution states that the State shall provide for free primary education. Article 42 comes under the heading

“Education”. The Constitution 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: Article 42.1. Parents are free to provide this education in their homes or in private schools or in

schools recognised or established by the State: Article 42.2. The Constitution expressly provides that 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: Article 42.3.1. 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: Article 42.3.2. Onto

this bedrock comes Article 42.4, the article in issue, which provides:

“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.”

Article 42.5 provides that 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.

It is clear from the wording of Article 42 that education is grounded in the family sphere. The family consists of children and parents.

The primary educator is the family, which is expressly protected. Both the parents and children have rights. A balance is created.

Whilst the family remains the primary educator, the State, as guardian of the common good, shall require a certain standard. This

standard is described as a certain minimum education, moral, intellectual and social. It is certainly not a high standard.

Into this formation the right to have provided free primary education is placed. I am satisfied that counsel for Jamie was correct when

he described it as a promise to the people. It is reflective of community values. It is reflective of the approach of the people of

Ireland to education.

Article 42.4 is placed in an article redolent of the family, where children are addressed as part of a family, where the primary educator

is acknowledged as the family. It paints a picture of a family of two parents, mother and father, and children learning from their

parents.

The term “child” falls to be construed in light of the plain language of Article 42. The word “child” in general use describes a young

person. It is a term used in a context where the focus is on the family, parents and children. The article anticipates the teaching of

young children. The article makes reference to schools - of different types. The article specifically refers to children. The article

speaks of a certain minimum education. The article addresses the rights of parents. The article stresses education in a context of

schools. The article is not addressing issues such as, for example, succession where the term ‘child’ might be used in a different

sense. It would be rewriting the Constitution to construe the term “child” as meaning a childish person. Consequently, the meaning of

the words “child” and “children” is clear. There is no ambiguity. The child is described within a family where the parents are the

educator. It is addressed to a young person. It is age related.

I am reinforced in this view by the fact that Article 42 follows Article 41 which relates to the family. The family is acknowledged as

the natural primary and fundamental unit group of society. The words of Article 42, including those relating to the family, parents and

children, continue the theme.

The essence of Article 42 is the concept of the family, and a child growing up in the heart of the family. Article 42 describes the

situation of the education of a young person within the family unit, a young person who is growing and learning. It also makes

provision for intervention for the common good to require that children receive a certain minimum education. A person who has

achieved adulthood is no longer subject to parental authority or decisions such as are envisaged in Article 42.

For all these reasons I am satisfied that Article 42 does not relate to adults. It does not give to adults the right to free primary

education. This right is reserved for children. This is not to limit in any way other rights which may be extant in the Constitution

relating to adults, whether they be able bodied or disabled. Thus as the right provided for in Article 42.4 runs for children only, the

next question is to what age the right runs.

In general primary school is completed when a child is under 14 years of age. This case deals with particular facts. It is conceded

that Jamie has the right until he is eighteen. The choice of eighteen years of age is somewhat arbitrary. The choice is based on the

fact that a young person becomes an adult in the eyes of the community in many aspects at the age of eighteen. He or she may

vote, inter alia.

Most children finish primary education, as it is understood in a general sense, between the ages of twelve and fourteen years of age.

Thus on first impression it would appear that 1fourteen is a more logical age than eighteen. However, the right to have free primary

education provided is a fundamental and important right established by the Constitution. It is a right with which certain individuals or

groups may encounter physical, mental or social difficulties in exercising. Therefore, the norm may not cover minorities. The right is

given to all children. It is appropriate that the construction of the article should ensure that all children may get the benefit of the

right. Consequently, it is fitting that the age at which the right ceases to exist is when the person is no longer a child. Therefore it is

reasonable to take the age at which society treats a young person as an adult as the age when the right ceases to exist. The

State’s case that Jamie is recognised as an adult when he reaches eighteen years of age is reasonable.

To sum up this issue: I am satisfied that the right that the State shall provide for free primary education is a right in relation to

children. The term children is age related. Under society’s mores, general practice and some laws it is appropriate to determine that a

person is no longer a child at the age of eighteen. Thus Jamie had a right to the provision of free primary education until he reached

eighteen years of age but he has not got the constitutional right to free primary education after that age. That is not to say that

Jamie will not require continuing support and training beyond the age of eighteen. Much of Jamie’s education at present, using the

word in its broad sense, is not the teaching of anything new but rather continued practice so that he may retain the skills he has

learnt. Such is not an Article 42.4 matter. However, Jamie’s other personal rights under the Constitution, including the right to dignity

and bodily integrity, continue.

7. Separation of Powers

The order of the High Court envisaged ongoing education and gave rise to legal argument in this court on the separation of powers.

All powers of government derive from the people: Article 6.1. These powers are exercised by the organs of government established by

the Constitution, being legislative, executive and judicial. The functions of government are divided between these three branches of

government. The separation of powers involves not only rights - but duties also. It establishes areas of activity and boundaries:

Crotty v. An Taoiseach [1987] I.R. 713, Finlay C.J., at p. 772. No one of the three organs is given a paramount place. In Murphy v.

Corporation of Dublin [1972] I.R. 215 at p. 234 Walsh J. stated:

“As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the interest

of the State, as such, is always involved. The division of powers does not give paramountcy in all circumstances to any one of

the organs exercising the powers of government over the other.”

In addition to recognising and applying the doctrine of the separation of powers it is important to afford respect to the decisions of

each of the constitutional organs of state. It is from this basis that analysis of governmental decisions commences.

The doctrine of the separation of powers arose for debate only in relation to the issue of a mandatory order of the court as to the

education of Jamie. However, the State has conceded breach of Jamie’s right and has agreed to continue Jamie’s education as

ordered by the High Court. Also, as Jamie’s constitutional right ceased when he became eighteen years of age there is no question of

a mandatory order for the future. It is no longer a matter for determination, thus there is no issue of separation of powers to be

decided in this case.

In general the matter of a mandatory order will not arise. It is a practice for the executive, when an issue is being litigated that could

give rise to a mandatory order, to indicate that should the decision be against the State a declaratory order would be sufficient.

Similarly, the courts assume that decisions will be implemented and that mandatory orders are not necessary. Thus a declaratory

order, if any order is necessary, is usually appropriate. However, I would not exclude the rare and exceptional case, where, to protect

constitutional rights, the court may have a jurisdiction and even a duty to make a mandatory order.

8. Mrs. Sinnott’s Case

8.1. Noteworthy Factors

There are a number of noteworthy factors about Mrs. Sinnott’s case. It is unusual in a number of ways.

(a) As regards the course of the case itself it is unusual.

(i) Mrs. Sinnott claimed a declaration that the State in failing to provide for free education for Jamie appropriate to his

needs as a profoundly mentally disabled child and in discriminating against her son, in respect of the provision of

appropriate educational facilities vis-à-vis other children, has deprived her of her constitutional rights pursuant to Articles

40.1, 40.3.1, 40.3.2, 41.1.2, 41.2, 42.1, 42.2, 42.3 and 42.4. Mrs. Sinnott claimed damages for breach of her

constitutional rights, negligence and breach of duty. Further, Mrs. Sinnott claimed a mandatory injunction directing the

State to provide for free education for Jamie appropriate to his needs for as long as he is capable of benefiting from same.

The State pleaded in defence that it had provided for free primary education for Jamie; it denied that the State had

deprived Mrs. Sinnott of any of her constitutional rights pursuant to Article 40.1, 40.3.1 or 2, 41.1 or 2, 42.1 or 2, 3 or 4;

it denied that the State had been guilty of negligence or breach of duty; and it pleaded that Mrs. Sinnott is not entitled

to have her son provided with free education for as long as he is capable of benefiting from it; and it was pleaded that

she was not entitled to the relief sought or any relief.

(ii) In the High Court the State opposed the claim of Mrs. Sinnott largely on the ground that it duplicated Jamie’s claim.

(iii) However, on this appeal the State submitted that Mrs. Sinnott has no cause of action in law. This was not pleaded in

the High Court. The Supreme Court was asked to take this point of its own motion. Counsel for Mrs. Sinnott pointed to

this unusual situation, that aspects - not pleaded or advanced in submissions nor the subject of appeal - had been placed

before the Supreme Court by counsel for the State with the request that they be taken into account. Counsel for Mrs.

Sinnott, Mr. Gleeson, S.C., submitted that this should not be allowed. Counsel for Mrs. Sinnott, Mr. Sreenan, S.C.,

supported this argument submitting that the State did not contest her rights in the High Court but argued a duplicity.

Further, he submitted that the Statute of Limitations was not pleaded, the learned trial judge took the point and it was

not appealed.

(b) It is noteworthy also that the State has made considerable concessions in this case. The State has conceded the majority

of Jamie’s case. The case took 29 days in the High Court. It was hard fought. Now the State has conceded Jamie’s right to free

primary education to the age of eighteen and has undertaken to pay damages and costs. Further, apparently the State has

agreed to pay the £15,000 special damages awarded to Mrs. Sinnott.

(c) The claim is noteworthy also in that, as regards Mrs. Sinnott, it is grounded on aspects of the Constitution which have not

been the subject of much attention in case law.

(d) An analogy was drawn between the position of Mrs. Sinnott and the developing law on negligence and injury, such as post

traumatic stress disorder, where the plaintiff was not at the scene of the event yet suffered injury. Reference was made to

Mullally v. Bus Eireann [1992] I.L.R.M. 722.

(e) The facts are not in issue. Thus the case is based on the facts as found by the learned High Court judge. On the facts the

High Court made a clear finding on fact and law in favour of Mrs. Sinnott.

I bear these noteworthy factors in mind in reaching a decision in this case.

8.2. Remedies

It has long been recognised that the courts have the power to remedy breaches of constitutional rights. This was described

classically in The State (Quinn) v. Ryan [1965] I.R. 70 by O’Dalaigh C.J. at p. 122 where he stated:

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be

set at nought or circumvented.

The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these

rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and the

Courts’ powers in this regard are as ample as the defence of the Constitution requires.”

Also, in Byrne v. Ireland [1972] I.R. 241 at 264, Walsh J. stated:

“In several parts in the Constitution, duties to make certain provisions for the benefit of citizens are imposed on the State in

terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution

must be deemed to have created a remedy for the enforcement of these rights.”

He continued at p. 280:

“In my view, that was clearly enforceable against Saorstát Éireann if no provision had been made to implement that Article of

its Constitution.

“There are several instances in the Constitution of Ireland also where the State undertakes obligations towards the citizens. It

is not the case that these are justiciable only when some law is being passed, which directly infringes these rights or when

some law is passed to implement them. They are justiciable when there has been a failure on the part of the State to discharge

the obligations or to perform the duties laid upon the State by the Constitution. It may well be that in particular cases it can be

shown that some organ of the State already has adequate powers and may in fact have had imposed upon it the particular duty

to carry out the obligation undertaken by the State, but that would not mean that the State was not vicariously liable for the

non-performance by its various organs of their duties.”

He also stated:

“Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce

these must be deemed to be also available.”

Barrington, J., in McDonnell v. Ireland, [1998] 1 I.R. 134, at 148, said:

“It is only when the legislature has failed in its constitutional duties to defend or vindicate a particular constitutional right,

pursuant to the provisions of Article 40.3 of the Constitution, that this Court, as the court of last resort, will feel obliged to

fashion its own remedy.”

Later, Barrington J. said:

“constitutional rights do not need recognition by the legislature to be effective. If necessary the Courts will define them and

fashion a remedy for their breach.”

In Boland v. An Taoiseach [1974] I.R. 338, FitzGerald C.J. said that:

(Article 6)“[established] beyond question the separation of the executive, legislative and judicial powers of government

Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by

the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the

Government of the powers and duties conferred upon it by the Constitution.”

In the same case, Griffin J., at p. 370 - 371, having referred to Article 15.2.1, Article 28.2 and Articles 34.1, stated that:

“In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view

it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a

complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”

And in DG v. The Eastern Health Board [1997] 3 I.R. 511 at p. 522, Hamilton C.J. stated:

“If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the

courts have the jurisdiction to do all things necessary to vindicate such rights.”

Mrs. Sinnott seeks a declaration and damages. It is not a case where a mandatory order against the State is in issue. The question is

whether the cause of action or the right or rights contested exist and were breached. The issue is whether Mrs. Sinnott has rights

which have been breached or another cause of action. If she has, the court has jurisdiction to make the relevant orders.

8.3. Articles of the Constitution

The major contention on behalf of Mrs. Sinnott rests on a number of articles and rights thereunder. These rights are the rights and

duties arising in relation to the right to equality: Article 40.1; rights in relation to the family: Article 41; and the rights and duties

arising under Article 42.

8.3.a. Equality

Article 40.1 provides that all citizens as human persons shall be held equal before the law. This does not mean uniformity. Due regard

may be had to differences of capacity, physical and moral, and of social function.

Article 40.1 forbids discrimination or distinctions which are unjust, unreasonable or arbitrary: O’B v. S [1984] I.R. 316, Walsh J. at p.

335. The mere fact of discrimination or distinction as between persons or groups does not make the difference unconstitutional.

Invidious discrimination is unconstitutional: People (D.P.P.) v. Quilligan and O’Reilly (No. 3) [1993] 2 I.R. 305 at p. 321.

There is no question but that the treatment of Jamie by the State would not be as an able bodied child. However, he was entitled to

be held equal - to be provided with free primary education. Similarly Mrs. Sinnott was entitled to be held equal before the law as a

parent and a mother.

Mrs. Sinnott had duties in relation to all her children - including those duties related to education. In her role as mother of Jamie, Mrs.

Sinnott was subjected to discrimination as between herself and another mother of a child with no handicap and as between herself as

mother to her other children and as mother to Jamie. Distinctions of themselves would not be invalid; indeed they would be valid in

that the education of Jamie would follow a different pattern. But an absence of provision of free primary education for Jamie, which

the State has conceded breached Jamie’s rights, also discriminated against Mrs. Sinnott’s duty and role, as opposed to that of the

mother of a child of average intelligence, in a manner that was unjust and invidious. Thus Mrs. Sinnott’s rights were breached and she

was discriminated against invidiously.

There were facts found as to the position of Mrs. Sinnott by the learned trial judge. These included the additional burden of work, the

additional time and effort required to attend to Jamie, the fact that this left Mrs. Sinnott worn out, and gave rise to anguish and

distress because of the State’s attitude. These facts were not appealed.

As a parent and mother Mrs. Sinnott was entitled to be held equal before the law. In accordance with her rights and duties as a

parent and mother she sought that free primary education be provided for Jamie. This was not done. The State did not provide for her

disabled son. As a consequence she had to shoulder additional burdens. This lack of provision is now recognised as a breach of

Jamie’s rights by the State. However, it is also a breach of Mrs. Sinnott’s right to be held equal. Mrs. Sinnott was not held equal to a

parent of a normal child in that no provision was made for her son’s education.

This is an invidious discrimination. This is not to say that Mrs. Sinnott is to be treated identically to a parent of a child who is able

bodied. Nor is it to say that provision must be made for education to optimum levels in all circumstances. Matters of policy and

finance are relevant factors for the policy makers. However, in this case, where the breach of Jamie’s right is acknowledged by the

State, a consequence is that the rights and duties of the parents were also affected and breached. Mrs. Sinnott’s rights in relation to

her child were not held equal. Mrs. Sinnott suffered invidious discrimination. Non-parental family members do not have such rights and

no claim of discrimination would be sustainable.

8.3.b. The Family

Article 41 comes under the heading ‘The Family’. It states:

41.1.1. “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral

institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

41.1.2. “The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of

social order and as indispensable to the welfare of the Nation and the State.”

The family of the Constitution, which has rights and duties, is based on a valid marriage. In The State (Nicolaou) v. An Bord Uchtala

[1966] I.R. 567 at p. 643 Walsh J. pointed out that the family referred to in Article 41:

“is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage

under the laws for the time being in force in the State.”

The fact that the family under the Constitution is based on a valid marriage has been a matter for discussion. Recommendations for

some alterations in the article were made by the Constitution Review Group, 1995. However, any such controversy is irrelevant to this

case. Mrs. Sinnott and Jamie are a family for the purpose of Article 41.

Mrs. Sinnott was married to Jamie’s father. Whilst Mrs. Sinnott has been separated from her husband for a number of years and she is

the sole carer for Jamie, they are still a family in accordance with the Constitution. Consequently the benefits, rights and duties of

the Constitution are attached to Mrs. Sinnott.

Article 41.1 recognises the family as a unit. It is the building block of our society. This unit has rights. In Murray v. Ireland [1985] I.R.

532 at p. 538 Costello J. said:

“the rights, in Article 41, s. 1, sub-s. 1 are those which can properly be said to belong to the institution itself as distinct from

the personal rights, which each individual member may enjoy by virtue of membership of the family.”

The rights recognised by Article 41 are those of the family and they may be protected by a member of the unit. The member qua

member of the unit also has rights which he or she may defend. The parents have a duty to the children of the family which they may

defend.

Thus Mrs. Sinnott has rights as part of the unit of the family and duties as a parent within that unit. If there is a breach by the State

of a right of one of the members of the unit, as, for example, here the child Jamie, then because of the nature of the right breached

this may have an impact on the family as a unit and the parent in the family. The negative impact on the family and Mrs. Sinnott of

the breach by the State was fully documented by the learned High Court judge.

Article 41 does not mention the child. It has been inferred that this may be interpreted as giving to parents more value than children.

Even taking this interpretation at face value it strengthens the position of Mrs. Sinnott.

The Constitution does not recognise a special role for fathers. However, at the time when the Constitution was enacted, as case law

illustrates, the father had a dominant authority in the family. It was taken for granted that he would provide for the family and lead

the family.

The mother is specifically mentioned in Article 41.2. which states:

41.2.1. “In particular, the State recognises that by her life within the home, woman gives to the State a support without which

the common good cannot be achieved.”

41.2.2. “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in

labour to the neglect of their duties in the home.”

And Article 41.3.1 further emphasises the special position of the family by stating:

“The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it

against attack.”

The position afforded to women and mothers by Article 41 has been described in a negative fashion. Thus the Constitution Review

Group p. 333 stated:

“Article 41.2 assigns to women a domestic role as wives and mothers. It is a dated provision much criticised in recent years.

Notwithstanding its terms, it has not been of any particular assistance even to women working exclusively within the home.”

It is true that the article has not been of assistance even to women working exclusively within the home. In L. v. L. [1992] 2 I.R. 77,

the High Court (Barr J.) held that a wife who had not worked outside the home could derive rights from Article 41. Barr J. stated at p.

98 - 99:

“In my view the judiciary has a positive obligation to interpret and develop the law in a way which is in harmony with the

philosophy of Article 41 as to the status of women in the home. It is also in harmony with the philosophy to regard marriage as

an equal partnership in which a woman who elects to adopt the full-time role of wife and mother in the home may be obliged to

make a sacrifice, both economic and emotional, in doing so. In return for that voluntary sacrifice, which the Constitution

recognises as being in the interest of the common good, she should receive some reasonable economic security within the

marriage. That concept can be achieved, at least in part, by recognising that as her role as full-time wife and mother precludes

her from contributing, directly or indirectly, in money or money’s worth from independent employment or avocation towards the

acquisition by her husband of the family home and contents, her work as home-maker and in caring for the family should be

taken into account in calculating her contribution towards that acquisition - particularly as such work is of real monetary value.”

Barr. J. held that the wife and mother had a 50% beneficial ownership in the family home. This was reversed on appeal by the

Supreme Court. However, by inference it raised the possibility of joint ownership of the home. There followed the Matrimonial Home

Bill, 1993 which was referred to the Supreme Court under Article 26 by the President. In Article 26, In Re The Matrimonial Home Bill,

1993 [1994] 1 I.R. 305, under the provisions as provided in the Constitution for such references, the judgment of the Court,

determining that the bill was unconstitutional, was given by Finlay C.J. who stated at p. 326:

“Having regard to the extreme importance of the authority of the family as acknowledged in Article 41 of the Constitution and

to the acceptance in that Article of the fact that the rights which attach to the family including its right to make decisions

within its authority are inalienable and imprescriptible and antecedent and superior to all positive law, the Court is satisfied that

such provisions do not constitute reasonably proportionate intervention by the State with the rights of the family and

constitute a failure by the State to protect the authority of the family.”

Both L. v. L. and In Re Matrimonial Home Bill 1993 related to property (the home). They also related to rights as between spouses - a

balance involving property ownership. Neither case related to rights of a parent or parents or of the family as against others outside

the family unit.

When Article 41 was being drafted and included in the Constitution there was a negative view expressed of the role apparently

consigned to women. It has been considered by some that the article was rooted in a particular Christian philosophy. It was queried

as to whether it placed the woman in the home to the detriment of other areas.

Whatever historical concepts and byways may be traced the reality is that the Constitution sets out constitutional rights, duties and

powers. The Constitution is a living document. It must be construed as a document of its time. In McGee v. Attorney General [1974]

I.R. 284 at 319 Walsh J. stated:

“no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”

Thus Article 41 is an article of the twenty-first century, an Article of our times. In this century the family remains the core unit of our

society. While the nature of family is evolving in society, as a constitutional unit the family remains grounded on marriage.

The Constitution is a constitution of the people expressing principles for its society. It sets the norms for the community. It is a

document for the people of Ireland, not an economy or a commercial company. The first of the cases in this judgment illustrates the

promise given by the people of Ireland to future generations that the State would provide for free primary education for its children.

The promise is an acknowledgement of the great importance placed by the people of Ireland on the education of children.

Equally, the second case in this appeal is grounded on a fundamental concept - even more so perhaps - that our society is built on

the family. Further, that within the family the special benefit given by women in the home, is recognised. It is acknowledged that that

benefit is not just for the particular home, family and children, but for the common good.

This special recognition is of the twenty-first century and belongs to the whole of society. It is not to be construed as representing a

norm of a society long changed utterly. Rather it is to be construed in the Ireland of the Celtic Tiger. As important now as ever, is the

recognition given. It is a recognition for all families - of whatever religion or none.

Thus, in Ireland, in relation to the family and the home, women have a constitutionally recognised role which is acknowledged as being

for the common good. This gives to women an acknowledged status in recognition not merely of the physical aspect of home making

and family building, but of the emotional, social, physical, intellectual and spiritual work of women and mothers. The undefined and

valuable role of the father was presumed and remained unenumerated by the drafters of the Constitution.

Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the

home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition

of the work performed by women in the home. The work is recognised because it has immense benefit for society. This recognition

must be construed harmoniously with other articles of the Constitution when a combination of articles fall to be analysed.

8.3.c. Education

Article 42 comes under the heading ‘Education’. It acknowledges the primary role of the family as the educator of the child and

guarantees protection of the role of the parents in providing, according to their means, for the religious and moral, intellectual,

physical and social education of their children. Parents are given a choice as to where they give the education to their children

provided that the children receive a certain minimum education, moral, intellectual and social. The requirement for free primary

education is provided for and the rights of parents is expressed. It is only in exceptional cases where the parents fail in their duty

towards their children that the State as guardian of the common good shall endeavour to supply the place of parents, but this has to

be with due regard to the rights of the child.

Consequently, educational rights are interwoven with the family, parental rights and duties, and the rights of the children. Article 42.4

creates rights. The provision in Article 42.4 is not created in a vacuum. It imposes a duty to provide the right and a right to receive

it.

Thus O’Higgins C.J. stated in Crowley v. Ireland [1980] I.R. 102 at p. 122:

“the imposition of the duty under Article 42, s. 4 .creates a corresponding right in those in whose behalf it is imposed to receive

what must be provided. . it cannot be doubted that citizens have the right to receive what it is the State’s duty to provide for

under Article 42, s. 4.”

I adopt this approach. It applies to all who have a right to receive the provision of the education - the family, the parents, the child.

Thus Jamie had the right to have free primary education provided for him. So too did Mrs. Sinnott have the right to have free primary

education provided for Jamie.

Mrs. Sinnott had a constitutional right as part of the family and as mother in relation to her son’s education. As a parent she had

rights and duties. The duty included the education of Jamie. This duty was breached in that she could not afford private education

and needed to rely on the constitutional right to have free primary education provided. This was not done. Thus her rights as a

parent were breached. Mrs. Sinnott’s rights under Article 42, and especially under Article 42.4 were breached. Indeed, as the case

law over the last sixty years shows most cases relating to children’s education are brought by parents - not children - as a breach of

their rights as well as the children’s rights.

8.3.d. Duty of Care

Counsel on behalf of Mrs. Sinnott also raised the issue of duty of care, and negligence was pleaded in the pleadings. The analogy was

drawn and reference made to Mullally v. Bus Éireann [1992] I.L.R.M. 722 . I took a similar approach in Kelly v. Hennessy [1995] 3 I.R.

253 where at p. 274 I stated:

“I am satisfied that a person with a close proximate relationship to an injured person, such as the plaintiff, who, while not a

participant in an accident, hears of it very soon after and who visits the injured person as soon as is practicable, and who is

exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary

victim to the accident. In reaching these determinations it is necessary to review the accident and immediate aftermath in an

ex post facto way to test the situation.”

The nexus between Jamie and Mrs. Sinnott could not be closer, nor is there any appeal against the findings of fact of injury to Mrs.

Sinnott. As to whether the State can breach with impunity the constitutional rights of a person and thereby injure a person in close

proximity is an issue that need not be determined in light of the breach of Mrs. Sinnott’s constitutional rights. I make no decision on

the civil issue of duty of care in this case.

9. Conclusion

The Constitution of Ireland is a constitution for the people of Ireland not an economy. The Constitution is a constitution for Irish

society. The Constitution establishes the principles by which the community wish to live. It places the family as the primary unit group

of society. It sets out the rights of the members of the society. At issue in this case are fundamental concepts of the Constitution,

the right to have free primary education provided, the role of the family in education, equality and the recognition of the work done

by women and mothers in the home for the common good.

There were facts found as to the additional burden of work, additional time, worry and anguish placed on Mrs. Sinnott in her duties in

relation to Jamie by the State’s acknowledged breach of its duties. The High Court held that:

“Mrs. Sinnott has also suffered harm, loss and damage by reason of the failure of the State to honour its constitutional

obligation to provide adequately for her son’s education and training, all of which was a reasonably foreseeable consequence of

the State’s conduct in that regard.”

Upon the facts found it was open to the learned trial judge to come to such a conclusion. There was no appeal on the facts.

As to the law and the Constitution I am satisfied that:

(a) There are a number of noteworthy factors about Mrs. Sinnott’s case, see paragraph 8.1.

(b) The courts have the power to remedy breaches of constitutional rights.

(c) Mrs. Sinnott as a parent with duties to her child was not held equal and suffered invidious discrimination from the State, see

paragraph 8.3.

(d) Mrs. Sinnott as a parent of a family had a duty to her child of the family and she was entitled to defend the institution of

the family which suffered as a consequence of the State’s breach, see paragraph 8.3.

(e) The special recognition given to the role of women and mothers within the home by the Constitution must be read

harmoniously with other articles of the Constitution, see paragraph 8.3.

(f) Mrs. Sinnott had the right as a parent to the benefit of the provision of free primary education for her child and this right

was breached by the State.

In light of these and the other matters herein relating to Article 40.1, Article 41 and Article 42.4 of the Constitution the learned High

Court judge had a constitutional basis for his decision which I would uphold.

In relation to the five issues submitted as needing to be determined by counsel for the State I would answer as follows:

1. Article 42.4 of the Constitution of Ireland does not afford a constitutional right to free primary education to adults.

2. The right to free primary education established in Article 42.4 of the Constitution does not envisage a right to education for

life.

3. The matter of a mandatory order does not arise, it is not an issue in the appeal as a consequence of the decisions at

paragraphs numbers 1 and 2 above.

4. Question 4 presupposes that there is only one cause of action. This is an error. Mrs. Sinnott has a cause of action. Damages

may be awarded to separate persons arising out of the same set of facts, for example victims of a road traffic accident; and

where persons have suffered a breach of a constitutional right by the State.

5. Question 5 presupposes, in error, that there was no breach of the constitutional rights of Mrs. Sinnott.

Counsel for Jamie and Mrs. Sinnott raised six points. I would answer them as follows:

1. The matter of a breach of Jamie’s constitutional rights was conceded by the State. Jamie is entitled as a matter of law to an

order for damages; an ex gratia payment does not reflect the (conceded) breach of his constitutional rights.

2. Article 42 requires the provision of free primary education for children. The State has a duty to provide for free primary

education to all children. It is reasonable to construe the Constitution as granting this childhood right as including persons up to

the age of eighteen. This is a broad interpretation in light of the more usual age when free primary education ceases but is

consistent with recognising the special needs of some children and cherishing all children.

3. The nature of primary education was not an issue. The State conceded that Jamie was now receiving primary education.

4. The courts have the power and, in certain circumstances, the duty to intervene in circumstances where constitutional rights

have been violated or to protect constitutional rights. I would not exclude the possibility of a mandatory order against the

State in the rare and exceptional case where it may be necessary in the circumstances to protect constitutional rights.

5. The matter of mandatory orders does not arise in this case in light of the decision that the right to the provision of free

primary education ceases when a child reaches eighteen years of age. There is no question of a mandatory order as Jamie is

now an adult.

6. The State case argued in the Supreme Court against Mrs. Sinnott was different from that argued in the High Court. As a

matter of proceedings and law this approach is inappropriate. I am satisfied that Mrs. Sinnott has a constitutional status, rights

and duties as a mother which should be upheld and were not.

Thus in relation to the three kernel issues of this case I conclude:

1. The breach of Jamie’s constitutional right that the State provide for free primary education was conceded. Jamie’s

constitutional right to the provision of free primary education existed during his childhood and ceased when he reached

adulthood which, it is reasonable to construe, commenced at the age of eighteen.

Jamie is entitled to a declaration that the first named defendant in failing to provide for free primary education for him up to the

age of eighteen years of age, appropriate to his needs as a severely autistic child with related profound mental handicap, has

deprived him of his constitutional rights under Article 42.4 of the Constitution. He is also entitled to the damages awarded as a

matter of law.

Nothing in this judgment should be regarded as negating any other constitutional rights which Jamie might have.

2. The matter of mandatory orders does not arise for decision as Jamie has passed his eighteenth birthday. Also, the issue does

not arise for consideration as the State has agreed to pay the damages and to pay for the education ordered by the High Court

for Jamie to 2003.

In light of the determination that the right to the provision of free primary education exists only for children and ceases at the

age of eighteen, and that provision is made for education for Jamie to an age in excess of eighteen years, I am satisfied that

the damages need not be reassessed. In coming to this conclusion, while I am conscious of the loss afforded to Jamie by the

absence of education in his youth, I balance this against the conceded future education as ordered by the High Court and the

fact that the State informed this Court that it accepted Jamie would need further training and that provision would be made for

that.

3. For the reasons stated, I would dismiss the appeal of the State against the judgment and order of the High Court in relation

to Mrs. Sinnott. Mrs. Sinnott is entitled to a declaration that her constitutional rights under Article 42.4, Article 41 and Article

40.1 were breached and to the award of damages made by the learned High Court judge.