Supreme Court holds Article 42.4 State education obligation applies only to children, not adults.

THE SUPREME COURT

Record No. 326 & 327/00

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

Defendants/Appellants

AND

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 Murray, J.

The first of the two above named cases, which have been heard together concerns

Mr Jamie Sinnott who was born on the 11th day of October, 1977 and who, a few months after his birth, was diagnosed as suffering

from a severe form of autism.

The facts of the case, and in particular the history concerning Jamie’s upbringing and education are clearly and extensively set out in

the judgment of Keane, C.J. as well as in the judgment of the High Court of Barr, J. The present appeal before this Court could

perhaps be said to be the ultimate point of an arduous odyssey pursued with remarkable perseverance and fortitude by his mother,

Mrs Sinnott, with a view to establishing his rights in law to an education appropriate to his needs as a person suffering from severe

intellectual and physical handicap.

The findings of fact made by the learned High Court Judge are not in issue in this appeal. More significantly not all the matters

comprised in the Order of the learned High Court Judge are in issue, largely as a result of concessions made by the State.

Accordingly, I think it is important to identify the constitutional issue or issues with which this appeal is concerned and those with

which it is not.

As Geoghegan, J. correctly points out in his judgment the decision and Order of the High Court was based exclusively on the first part

of Article 42.4. This was also the basis of the Plaintiff’s arguments in this Court.

In summary the High Court Order made the following findings in favour of Jamie Sinnott:

(a) He has had at all material times a constitutional right to free primary education appropriate to his needs as a severely

autistic child;

(b) He has a right to be provided with free primary education - not only as a child but as a constitutional entitlement from the

point when he reached adulthood into the future for as long as he is capable of benefiting from it.

(c) He is entitled to general damages to date and in the future against the State for breach of its constitutional duty to provide

for his primary education.

(d) A mandatory Order directing the Defendants to forthwith provide free primary education in the future appropriate to his

needs for as long as he is capable of benefiting from same.

There was also provision for damages to cater for special damages for his educational and ancillary needs for a 30 month period

following the making of the High Court Order with provision for a review by the High Court of the mandatory Order and the damages

awarded at the end of that period. The State, as appellant, is not appealing against the finding of the learned High Court Judge that

it was in breach of its constitutional obligations in failing to provide for free primary education for Jamie Sinnott in the years before he

reached the age of an adult. As an integral part of this concession, it concedes that this right continued to the age of 18 but not

beyond. Neither does the State contest the learned High Court Judge’s findings as to the content or nature of the care, training and

education which was appropriate to his needs and which constituted primary education within the meaning of Article 42.4. The State

also do not contest the damages awarded to Jamie Sinnott in particular the general damages to date which were calculated on the

basis that he has suffered a breach of his constitutional rights up to the age of 23, (his age at the time of the hearing of the High

Court action), beyond the age limit of 18 years notwithstanding that the State submits that it’s constitutional obligations end at that

latter age. This was stated to be an ex gratia stance taken by the State. It is also been indicated that as a matter of policy Jamie

Sinnott will continue to receive care, training and education in accordance with his mother’s wishes. Since this is a matter of policy

only we are not concerned with that here.

In my view the case is not concerned with the content or quality of what constitutes primary education within the meaning of Article

42.4 since this point was not appealed and must be considered as moot for present purposes. Nor is it concerned with the

constitutional right of Jamie Sinnott to free primary education as a child. Neither is it in issue in this appeal whether, in the future,

Jamie Sinnott will or ought, solely as a matter of policy or legal right pursuant to statute, receive a form of care and education.

The primary issue in this appeal is whether Article 42.4 in requiring the State to “provide for free primary education” should be

interpreted as creating a constitutional obligation on the State to provide such education to all persons, that is to say children and

adults, at any stage of their life should an individual be in need of such education.

In their appeal the Appellants have also put in issue certain parts of the Order made by the learned High Court Judge which are

consequent upon his declaration that Jamie Sinnott is entitled to be provided with free primary education into the future so long as he

is in need of it, in particular, that part of the Order which is mandatory as against the State and which involves the High Court in a

supervisory role on the post trial implementation of its Order by the State. These latter issues only arise if the Appellants are

unsuccessful on the primary issue.

The Primary Issue:

The primary issue in this appeal is whether Article 42.4 of the Constitution is to be interpreted, as found by the learned High Court

Judge, as requiring the State to provide free primary education “as an open-ended obligation, based on need rather than age.” The

implications of this Order go beyond the circumstances of a handicapped person in the tragic situation of Jamie Sinnott. The

consequence of the High Court finding and it was so argued by Counsel for the Plaintiff, is that the duty of the State is to provide

free primary education not only to children but to adults at any stage of their life according to their need. As

Mr Gleeson, S.C. for the Plaintiff, argued the right would extend to a 65 year old who was in need of primary education. He also

submitted that the constitutional obligation on the State to provide for free primary education pursuant to Article 42.4 was of a

unique character and embraced a constitutional commitment of the highest order. Article 42.4 elevated the State’s obligation to

commit a proportion of national resources to the provision of free primary education to a plane above the vast range of decisions

concerning the allocation of the national budget which are normally a matter of political choice. In this he is correct.

This issue is one of fundamental importance to both parties and has important constitutional ramifications for the organs of State,

including the extent to which the powers of the Oireachtas should be limited in the choices it makes in the spending of the public

purse in the interests of the community as a whole. In these circumstances it is clearly a constitutional issue which merits, if not

requires, in the public interest a final determination and clarification on appeal to this Court as the Court of final instance. For this

reason and the reasons given by both Hardiman, J. and Geoghegan, J., I am of the view that the apparent inconsistency between the

State accepting liability for the damages awarded to the Plaintiff up to the age of 23 and its contention that the constitutional

obligation to provide for free primary education does not extend beyond the age of 18 years is not such as to preclude it from raising

this issue on appeal.

Article 42.4:

Article 42.4 states:

“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”.

It is axiomatic that the point of departure in the interpretation of a legal instrument, be it a constitution or otherwise, is the text of

that instrument, albeit having regard to the nature of the instrument and in the context of the instrument as a whole.

In the State (Browne) -v- Feran [1967] I.R. 147, in a unanimous decision of this Court, Walsh, J., while differentiating between the

application of canons of construction to a statute and a written constitution stated “In the construction of a Constitution words,

which in their ordinary meaning import inclusion or exclusion, cannot be given a meaning other than their ordinary literal meaning

save where the authority for so doing can be found within the Constitution itself.”

Relying on that dictum, O’Higgins, C.J., in The People -v- O’Shea [1982] I.R. 384 at 397 stated “The Constitution, as the fundamental

law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the

meaning is plain and unambiguous, must be given their literal meaning. Of course the Constitution must be looked at as a whole and

not merely in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the

situation which obtained and the laws which were in force when it was enacted. Plain words, however, must be given plain meaning

unless qualified or restricted by the constitution itself”.

As Walsh, J. was known to say, both judicially and extra-judicially, the Constitution is written in the present tense. In McGee -v- The

Attorney General [1974] I.R. 287 he stated “It is but natural that from time to time the prevailing ideas of [prudence, justice and

charity] may be conditioned by the passage of time; no interpretation of the constitution is intended to be final for all times.”

O’Higgins C.J. In The State (Healy)-v- Donoghue [1976] I.R. 325 similarly observed that “... rights given by the Constitution must be

considered in accordance with the concepts of prudence, justice and charity which may gradually change and develop as society

changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas.”

Agreeing as I do with the view that the constitution is a living document which falls to be interpreted in accordance with

contemporary circumstances including prevailing ideas and mores, this does not mean, and I do not think it has ever been so

suggested, that it can be divorced from its historical context. Indeed, by definition that which is contemporary is determined by

reference to its historical context.

What is understood by ‘primary education’ in Article 42.4? It was not in contention in this appeal that historically primary education

has always been understood as the basic education given to children in primary schools by primary teachers up to the age of 12 or 14

years. For immediate purposes I don’t think it is necessary to review the definition given to primary education by reference to its

content in a number of judicial authorities. However education as a concept is defined, primary education has always been understood

to be a form of basic education given to children in the primary school cycle. It stands in contrast with secondary education and third

level education as well as, nowadays, pre-school attendance of infants. The precise age at which the primary cycle begins and ends

may be a variant of history, culture and policy in any given country but in the end it has been traditionally understood as referring to

that primary cycle in which children, as opposed to adults, are taught..

Primary education has been part of the education system in this country since the 19th century. As Murnaghan, J. observed in

McEneaney -v- The Minister for Education [1941] I.R. 430 at 438: “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 1to a corporate body

created by Royal Charter called to the Commissioners of National Education in Ireland”. The constitution of 1922 made express

provision for the availability of primary education.

In short, primary education in the pre 1922 and post 1922 education system was understood as ordinarily and naturally referring to

the education of children. This was the system in place when the constitution of 1937 was adopted. Counsel for the Plaintiff argued

that in adopting the constitution of 1937, Article 42.4 represented a dramatic decision of the people to ensure that there was a

financial commitment of constitutional status to the provision of free primary education. It certainly was a fundamentally important

statement in the Constitution of the State’s obligation to provide free primary education but there is nothing to indicate that it had

any dramatic or any material effect on the existing structure. In fact the constitution was not a catalyst for change in that regard.

Primary education as naturally and generally understood, continues to be afforded to children to the present day.

In my view even today the generally understood meaning of primary education, (and primary school and primary teacher) is the

teaching of children and contemporary English dictionaries define it in such a way.

The late professor John Kelly, writing in The Constitution of Ireland 1937-1987 (Institute of Public Administration 1988) suggested

guidelines to achieve a balance as between possible competing claims of the historical approach to constitutional interpretation and

the contemporary or ‘present-tense’ approach. The ‘present-tense’ or contemporary approach, he suggested is appropriate to

standards and values. “Thus elements like ‘personal rights’, ‘common good’, ‘social justice’, ‘equality’, and so on, can (indeed can only

be) interpreted according to the lights of today as Judges perceive and share them.” He felt that on the other hand the historical

approach was appropriate “Where some law-based system is in issue, like jury trial, county councils, the census.” This he said was

not to suggest that the “shape of such systems is in every respect fixed in the permafrost of 1937. The courts ought to have some

leeway for considering which dimensions of the system are secondary, and, and which are so material to traditional constitutional

values that a willingness to see them diluted or substantially abolished without a referendum could not be imputed to the enacting

electorate”.

There is undoubted value in such an approach which Professor Kelly clearly had in mind as an guide to, rather than formal canons of,

interpretation.

As correctly emphasised by Counsel for the Plaintiff the obligation to provide for free primary education in Article 42.4 is unique in the

extent to which it circumscribes the discretion which the organs of State, government and Oireachtas, normally enjoy under the

Constitution as to the allocation of national resources. That particular obligation is limited to primary education. It excludes other

forms of education. If Article 42.4 was intended to extend that constitutional obligation to the provision of free primary education to

all adults, irrespective of their age, according to their need, I think it can fairly said that one would have expected that such a far

reaching limitation on the powers of the Oireachtas to have been expressly stated in the provision.

That is not to say that the content or nature of the education to be provided for cannot be interpreted in the light of present day

circumstances. The nature and quality of the primary education to be provided is a more abstract concept with connotations of

standards and values. Historically there is no doubt that many persons who suffered from mental or physical handicap were not

capable of benefiting from the kind of education that was traditionally available. However, with greater insight into the nature of

people’s handicaps, the evolution of teaching methods, new curricula as well as new tools of education there is no doubt that the

nature and content of primary education must be defined in contemporary circumstances. That means where children are capable of

benefiting from primary education (however its content is defined) the State have an obligation to ensure that it is provided free to

children who can benefit from it including those who suffer from severe mental or physical handicap.

In my view, primary education taken in its ordinary and natural meaning is at once both inclusive and exclusive. It relates to the

teaching of children only. It includes children but excludes adults. I do not find in the Constitution authority for interpreting it

otherwise.

The question remains as to the age to which a child is entitled to benefit from the constitutional obligation of the State to provide for

primary education. The obligation to ensure that the constitutional duty of the State is fulfilled lies in the first instance with the

relevant organs of government referred to in Article 6 of the constitution, the executive and the legislature. Thus this question in my

view is a secondary matter which is in the first instance one of judgment by Government and the Oireachtas subject to judicial review

by the Courts should such judgment fail to fully respect the obligation concerned. Whether the obligation to provide for free primary

education begins to take effect in respect of children aged 4 or 5, for example, must in the first instance be a matter for such

judgment. Similarly, like Geoghegan, J., I am of the view that the State must have a margin of appreciation as to the age up to which

primary education should be provided for pursuant to Article 42.4. In judging that age as 18 years, the age at which children legally

achieve adulthood, the State is not acting inconsistently with its obligations under Article 42.4 and I agree fully with the reasons

given by Geoghegan, J. in his judgment in this regard.

Article 42 generally:

As already indicated, Article 42.4 also fall to be interpreted within the context of Article 42 as a whole and indeed the Constitution

itself. In examining whether the obligation of the State to provide for free primary education is confined to children rather than

extending to adults in the context of that Article as a whole I find that my earlier conclusions confirmed. Article 42 commences with

the provision:

“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”.

In my view this introductory paragraph to Article 42 sets the tenor and ambit of the Article, focusing as it does on the Family as the

natural educator of the child with a corresponding rights and duties of parents to provide, inter alia, for the education of their

children. Articles 42.2, 3., and 5 set certain parameters to the exercise of parents of their rights and duties providing for the State to

intrude upon those rights, “as guardian of the common good,” so as to require that children receive a certain minimum education,

moral, intellectual and social. The State may also intrude where the parents fail in their duty but this in turn is circumscribed, in

Article 42.5 by the requirement that the State must have “due regard for the natural and imprescriptible rights of the child.”

In my view Article 42 taken as a whole is child centred and Article 42.4 as relied on in this case is an obligation imposed on the State

to provide for free primary education with a view to facilitating parents in the exercise of their duties towards their children or, should

the parents fail to do so, to give effect to children’s right to primary education. Neither do I find that there is any other provision of

the Constitution which would authorise any other interpretation.

For the foregoing reasons I conclude that the obligation of the State to provide for free primary education pursuant to Article 42.4 of

the constitution extends to children only.

As regards other arguments relied on by the Plaintiff and on this issue generally I agree with the judgments of Denham, J. Geoghegan,

J. and Hardiman, J. and in particular Hardiman J’s analysis of the use of the words child or children in the English and Irish text of the

Constitution.

In these circumstances I do not consider it necessary to consider for the purposes of this appeal the other issues which have arisen

concerning the making of a mandatory order against the State, its supervisory nature and the question concerning the separation of

powers.

I would allow this appeal and agree that the declaration proposed by Geoghegan, J. in his judgment be made.

With regard to the second action in which Jamie Sinnott’s mother, Mrs Kathryn Sinnott, is the Plaintiff, I agree with the judgment of

the Chief Justice and that appeal should be allowed.