Supreme Court dismissed claim that State's primary education duty extends to autistic child over 12. State has no constitutional obligation for special needs beyond age 12.

THE SUPREME COURT

Record No. 326 & 327/00

Keane CJ

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

Defendants/ Appellants

AND

Between:

Kathryn Sinnott

Plaintiff/ Respondent

And The Minister for Education, Ireland And the Attorney General

Defendants/ Appellants

Judgment of Mr Justice Francis D Murphy delivered the 12th day of July, 2001

The above named Jamie Sinnott (Mr Sinnott) was born on the 11th day of October, 1977. Within some months of his birth he began

to display the symptoms of the autism with which he is afflicted. The heroic efforts made by his mother, the above named Kathryn

Sinnott (Mrs Sinnott) to have his condition assessed, treated and managed both in the United States and this country have been set

out in the judgment of Barr J and summarised in the judgment of the Chief Justice. It is unnecessary for me to repeat them. Suffice it

to say that it has been difficult, and it will be impossible, for this devoted mother to meet unaided the very special needs of her

autistic son.

The extent of Mr Sinnott’s disability or the consequences of it were summarised by his Counsel in this Court in the following terms:-

“The plaintiff is not capable of learning much more than toilet training, preserving his mobility and responding to simple

instructions, and perhaps a few words.”

It was in those tragic circumstances that the proceedings on behalf of Mr Sinnott were instituted. It was contended that the State

failed to afford him certain specific constitutional rights to which he was entitled. Article 42.4 of the Constitution imposes a

mandatory obligation on the State to “provide for free primary education”. The same sub-article requires the State to “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”. An absolute duty exists in relation to what is described as “primary education”. The

qualified duty exists in respect of the provision of any other form of education or facilities for it. The Constitution significantly imposes

no obligation on the State to provide health care of any description for its citizens.

Mr Sinnott was and is educable. In the most favourable phases of his young life when he attended schools managed by skilled

therapists and operated on the basis of a low ratio of students to teachers considerable progress was made. However, the goals

attainable are limited and, tragically, there is the further complication that progress when achieved cannot be maintained without

continuous support. In the High Court it was argued that the help and assistance which Mr Sinnott required (and continues to require)

consisted in whole or in part of what is described as “primary education” in Article 42 of the Constitution. The argument advanced

was similar to that which had been made successfully to the High Court in O’Donoghue .v. The Minister for Health & Ors [1996] 2 IR

20. In his analysis of the words “primary education”, Mr Justice O’Hanlon referred to the observations of O’Dálaigh CJ. In Ryan .v. The

Attorney General [1965] IR 294 (the Flouride Case) where he explained (at page 350) what constituted education and, more

particularly, what did not:-

“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.”

In O’Donoghue .v. The Minister for Health & Ors O’Hanlon J not merely extended that definition of education but, unlike O’Dálaigh CJ,

expressly related (at page 65) his definition to Article 42.4 of the Constitution in the following terms:-

“I conclude, having regard to what has gone before, that there is a constitutional obligation on the State by the provisions of

Article 42, s.4 of the Constitution to provide for free basic elementary education of all children that this involves giving each

child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent and

potential capacities, physical, mental and moral, however limited these capacities may be, or to borrow the language of the

United National Convention and Resolution of the General Assembly - “such education as will be conducive to the child’s

achieving the fullest possible social integration and individual development; such education as will enable the child to develop

his or her capabilities and skills to the maximum and will hasten the process of social integration and reintegration.””

The decision of O’Hanlon J in the O’Donoghue case was appealed to this Court but the appeal was withdrawn on terms which are

recorded in a footnote (at page 72) to the report of the High Court decision in the following terms:-

“The appeal on the part of the respondents pursuant to notice of appeal dated the 23rd July, 1993, from the judgment and

order of the High Court (Mr Justice O’Hanlon) given and made on the 27th May, 1993, coming on for hearing this day

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

for the respondents that the State is now providing for the infant applicant education appropriate to his current condition, this

Court substitutes for the declaration in the High Court a declaration that the infant applicant is entitled to free primary

education in accordance with Article 42, s.4 of the Constitution and the State is under an obligation to provide for such

education

And this Court notes the statement of counsel for the respondents that the said respondents are not to be taken as accepting

the manner in which the learned trial judge interpreted the said obligation

And this Court notes the statement of counsel for the applicant that he is not to be taken as acknowledging any error in the

matter in which the learned trial judge interpreted the said obligation

IT IS ORDERED that the order of the High Court do otherwise stand affirmed and that the respondents do pay the applicant

the costs of this appeal, the said costs to be taxed in default of agreement.”

I believe that the judgment in the O’Donoghue case was erroneous and that Mr Justice Barr likewise erred in the conclusion which he

reached as to the meaning of the crucial words “primary education”.

There is no question of setting aside the judgment of the learned trial Judge in that respect or the orders consequent upon it. No

appeal has been taken from that finding. The State deliberately conceded that the needs of Mr Sinnott must be met within the

context of the system of primary education. The main thrust of the argument addressed to this Court on behalf of the State

concerned the period for which this obligation would persist. On behalf of the State it was argued that the obligation to provide

primary education for Mr Sinnott ceased when he attained the age of 18 years. On Mr Sinnott’s behalf it was argued that the right to

primary education endured as long as the student could benefit from it and, in Mr Sinnott’s case, that would be for the remainder of

his life.

It seems to me, however, that it is not possible to isolate this debate from the more fundamental issue as to the nature and meaning

of “primary education” as used in Article 42 of the Constitution. This is a matter of legal interpretation for the Court and cannot be

founded upon the agreement of the parties or any concession made by either of them. Furthermore, to require the Court to decide

what is a derivative or consequential issue on the footing that the substantive issue had been correctly determined would be to invite

the Court to engage upon a moot. I do not see how this Court could purport to determine the duration or possible duration of primary

education without first satisfying itself as to the meaning of that expression.

The nature, basis and purpose of the fundamental rights recognised by the Constitution must be distinguished from the purpose and

character of not dissimilar rights inscribed in other constitutions and the charters of distinguished international organisations. The

preamble to the Constitution, which is frequently cited in identifying and construing the rights and duties which it confers or

recognises, contains the following assertion:-

“In the name of the most holy Trinity, from whom is all authority and to whom, as our final end, all actions both of men and

states must be referred ....”

It is that destiny which provides the logical basis for the constitutionally recognised rights of the individual. They exist, and are

exercisable primarily, as a means of achieving the goal identified in the preamble. However desirable it may appear economically or

practically to permit or require the State to engage in activities, or provide facilities or services, the Constitution is careful to restrain

the State and any other organisation from usurping the functions of the individual in his or her right and duty to achieve his purpose

and fulfill his destiny to the best of his ability. Nowhere is this philosophy more clearly identified than in Article 42 of the Constitution.

Having established the importance of “The Family” in Article 41.1.1 in the following terms:-

“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.”

Article 42.1 then goes on to provide as follows:-

“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.”

The scheme of the Article is best appreciated by passing then to sub-article 5 which provides as follows:-

“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 endeavor to supply the place of the parents, but always with due

regard for the natural and imprescriptible of the child.”

Article 42 is unique: alone among all the fundamental rights expressly or impliedly recognised by the Constitution it refers to a duty

imposed on the person upon whom the right is conferred. The scheme of the Article is helpful for the manner in which it recognises

where the right and duty lies and the circumstances in which the State may supplement the performance of that duty. Whilst Article

42 does impose significant duties on the State in relation to education the Article repeatedly expresses limitations on the right of

power of the State to intervene. In Article 42.3.1 it is provided 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.”

In Article 42.4 having empowered the State to provide certain “educational facilities or institutions”. This is limited to circumstances

where it can be done:-

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

Similarly in Article 42.5 the right of the State to endeavour to supply the place of parents who have failed in their duties to their

childrens can also be exercised only:-

“With due regard for the natural and imprescriptible rights of the child.”

In those circumstances it is perhaps surprising to find two Articles expressly requiring the State to provide, or to provide for, or to

insist upon certain levels of education or educational facilities. Article 42.3.2 provides as follows:-

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

minimum education, moral, intellectual and social.”

And then the crucial provision with regard to primary education at Article 42.4 in the following terms:-

“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, the rights of parents, especially in the matter of religious and moral formation.”

The learned trial Judge in the present case interpreted, as O’Hanlon J had done in the O’Donoghue case, the words “primary

education” by adopting the definition of education as provided by O’Dálaigh CJ in the Fluoride Case and equating the word “primary”

as used in the Article as meaning basic or fundamental and in that way concluded that this was education suitable to meet the very

pressing needs of Mr Sinnott. Whilst I would have no difficulty in accepting that Mr Sinnott is in need of what would fall within the

general ambit of education and has a proven ability of responding, albeit at a modest level, to such education I could not accept that

the needs which Mr Sinnott had, and has, for assistance from therapists, teaching staff, paediatricians, consultant psychiatrists,

social workers, family therapists and psycho therapists could be equated with primary education as that term was used in the

Constitution and understood by anybody familiar with the system which existed when the Constitution was adopted or indeed the

philosophy lying behind the enactment of the particular constitutional rights in respect of education. The imposition of an express

obligation on the State to provide for primary education might, as I say, seem surprising but it was not revolutionary. When the

Constitution was adopted such an obligation was already in existence as Murnaghan J explained in McEneaney .v. The Minister for

Education [1941] IR 430 at 438 as follows:-

“For now more than a century it has been recognised that the provision of primary education is a national obligation; and for

very many years this duty was entrusted to a corporate body created by royal charter called the Commissioners of National

Education in Ireland.”

The nature of that education and the children for whom it was provided is well understood by the people who adopted the

Constitution. Its meaning is not to be found by reference to experts however distinguished. No doubt improvements have been made

in the buildings in which such education is provided and hopefully the facilities are better now than they were 60 years ago but these

are changes in detail and in style. In my view primary education as identified in the Constitution is education provided for children the

age limits of which were determined historically by the Education (Ireland) Act, 1892, which required parents to send their children

between the ages of 6 and 14 years to receive certain schooling. Primary Education is provided by teachers in classrooms. It was and

is a basic scholastic education in the sense that it is a first stepping stone on a career which may lead to secondary level and ideally

graduate to the third level. It is distinguishable from secondary level education on the one hand and nursery schools, or any other

form of pre primary education, on the other.

If such needs as toilet training fell within the ambit of “primary education” at all, it seems to me that they would also necessarily

come within the scope of the “minimum education, moral, intellectual and social” which every child is bound to receive. Having

regard to the structure of the Constitution it is extremely unlikely that those who framed it or the people by whom it was adopted

would have authorised the State to intervene in such intimate matters.

I have no doubt that the State has ample powers under Article 42.4 to supplement available educational facilities and to provide

others. Perhaps more should have been done. Hopefully more will be done. The constitutional power was always there. It was a

matter for politicians and the people as their ultimate masters with, perhaps, the assistance of the media and dedicated campaigners

like Mrs Sinnott to ensure that resources are in fact made available to meet the needs of such people as Mr Sinnott and other

persons with disabilities or disadvantages. Regretfully I do not accept that the obligation was there or could be found under the

heading “Primary Education”. It follows that in my view that such obligation as the State has to provide education for any person

ceases when that person attains the age of 12 years. A fortiori no obligation in respect of such education exists in respect of a

student over the age of 18 years. Accordingly I would allow the appeal insofar as it relates to that issue but of course without

prejudice to any concession which has been made or may be made by the Minister to Mr Sinnott whether in respect of damages,

costs or otherwise.

If there had been a failure by the Respondents to meet their obligations in respect of primary education it would be Mr Sinnott and

not Mrs Sinnott who would have a cause of action. As there was no such failure neither Mr Sinnott nor his mother can sustain any

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