Mother's constitutional rights claim dismissed; State duty to educate child, not parents, upheld by Supreme Court.

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

THE SUPREME COURT

Record No. 326 & 327/00

BETWEEN/

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

Plaintiff/Respondent

AND THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

Defendants/Appellants

and

BETWEEN/

KATHRYN SINNOTT

Plaintiff/Respondent

AND THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

Defendants/Appellants

Judgment of Mr Justice Geoghegan delivered the 12th day of July 2001

INTRODUCTION

Jamie Sinnott, the first above-named plaintiff, brought the first of the above entitled actions against the State. In it he claimed that

he was an autistic child and that the State had not provided him with the kind of education which it was constitutionally bound to

provide having regard to his disability. Various provisions of the Constitution were relied on for this purpose. The relief sought included

a declaration that the plaintiff had been deprived of his constitutional rights pursuant to Articles 40 and 42 of the Constitution, and in

particular Article 40.1, Article 40.3.1, Article 40.3.2, Article 42.3.2 and Article 42.4, damages for breach of the constitutional rights,

for negligence and for breach of duty, and a wide ranging mandatory injunction directing the first-named defendant to provide for free

education for the plaintiff, appropriate to his needs for as long as he was capable of benefiting from same. Jamie Sinnott’s mother, the

plaintiff, in the second above entitled action and hereinafter referred to as “Mrs. Sinnott” also sued the State in that action and

claimed a declaration that the first-named defendant, in failing to fulfil Jamie Sinnott’s constitutional rights, deprived Mrs. Sinnott of

alleged constitutional rights of her own pursuant to Articles 40.1, 40.3.1 and 2, 41.1 and 2, 42.1 and 2, 3, and 4. Mrs. Sinnott also

claimed damages for breach of her constitutional rights, negligence and breach of duty and a similar wide-ranging mandatory

injunction as was sought in her son’s action.

The two actions were fully contested by the defendants over many days in the High Court before Barr J. The learned trial judge heard

the two actions together, and delivered a single reserved judgment in which effectively, he found for both plaintiffs. I will be returning

to his judgment in due course. The order, as drawn in up in Jamie Sinnott’s action, is to the following effect. The High Court declared

that the Minister for Education, in failing to provide for free primary education for the plaintiff appropriate to his needs as a severely

autistic child with related profound mental and physical handicap and in discriminating against the plaintiff with respect to provision of

appropriate educational facilities vis-à-vis other children, has deprived the plaintiff of his constitutional rights pursuant to Articles 40

and 42 of the Constitution, and in particular Article 40.1, Article 40.3.1, Article 40.3.2 and Article 42.3.2 and Article 42.4. It is then

ordered that the plaintiff should recover £222,500 damages “for breach of the plaintiff’s constitutional rights, negligence and breach

of duty” and that the Minister should “forthwith provide for free primary education for the plaintiff appropriate to his needs for as

long as he is capable of benefiting from same”. It is further provided in the order that the necessary funding be forthcoming 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, and that the plaintiff be provided with the necessary funding for home based ancillary

services, speech, physiotherapy, occupational and music therapies and medical care estimated at £15,000 per annum subject to

review on completion. The order then directs that the mandatory injunction and damages granted by it are to 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 that review

with liberty to the plaintiff to re-enter or to apply in the interim in that regard. The order, as drawn up, does not in some respects

correspond to the written judgment and I will return to that matter in due course.

The order, as drawn up in Mrs. Sinnott’s action, contains a declaration that the Minister “in failing to provide for free primary

education for the plaintiff’s son, Jamie Sinnott, appropriate to his needs as a severely autistic child with related profound mental and

physical handicap and in discriminating against the plaintiff’s son with respect to provisions or appropriate educational facilities vis-à-

vis other children has deprived the plaintiff 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, 3 and 4 of the Constitution” and there is then an award of £55,000 damages “for breach of the plaintiff’s constitutional

rights, negligence and breach of duty” and an order that the Minister “do forthwith provide for free primary education for the

plaintiff’s son appropriate to his needs for as long as he is capable of benefiting from same”. There followed a provision that the

mandatory injunction could be reviewed in April, 2003 with liberty to the plaintiff to re-enter or to apply in the interim in that regard.

The defendants/respondents appealed both orders to this court. I think it appropriate to summarise the grounds of appeal, as set out

in both notices of appeal, even though some aspects of the appeals were subsequently withdrawn. In Jamie Sinnott’s action the

defendants appealed on substantially the following grounds:-

1. That the learned trial judge was wrong in interpreting Article 42.4 of the Constitution as requiring the State to provide for

free education and related services for Jamie Sinnott “as an open ended obligation, based on need rather than age”.

2. That such an interpretation by the trial judge constituted a far-reaching exercise of judicial authority contrary to the

constitutional jurisprudence relating to judicial restraint.

3. That the right declared by the learned trial judge was not an express right under Article 42.4 and must therefore, if it exists,

be regarded as a non-specified constitutional right.

4. That the learned trial judge was wrong in holding that an entitlement to free primary education for life in some circumstances

existed from the coming into operation of the Constitution in 1937 and that failure to honour it has sounded in damages since

the early 1970s when expert opinion widely accepted that the mentally handicapped were capable of onward benefit from

appropriate education.

5. That in the declarations and orders which the trial judge made, he failed to have proper regard to the doctrine of separation

of powers under the Constitution and particularly when the raising of tax revenue and the spending of public monies were

involved.

6. That the trial judge was in error in providing for a review in the future of the reliefs by way of mandatory injunction and

damages.

7. That the trial judge erred in interpreting Article 40.1, Article 40.3.1 and 2 and Article 42.3.2 as relevant to the interpretation

of the Constitution which he made.

8. That the trial judge erred in awarding damages and in particular in failing to articulate the basis for such damages and in

failing to consider any temporal limitation thereon.

9. That there was no justification for awarding damages for negligence or breach of duty as those claims had not been

maintained in the action.

10. That the trial judge erred in pronouncing on the liability of the defendants for punitive damages.

The grounds of appeal as set out in the notice of appeal in Mrs. Sinnott’s action, were more or less identical.

In the event, the State has agreed to pay the full award of damages to Jamie Sinnott to date. This court is not now being asked to

set aside that award but what is still under appeal is the following.

1. The mandatory injunction granted in Jamie Sinnott’s case.

2. The provision for review in April, 2003 and indeed the entire concept of the court retaining control of the proceedings and

remedies into the future in any way.

3. The entitlement of Mrs. Sinnott in her action to any of the reliefs which she sought.

Counsel for the defendants/appellants, Mr. Fitzsimons, was instructed to inform the court that the defendants were conceding that

the constitutional duty under Article 42.4 of the Constitution, to provide free primary education embraced a duty to provide training

and education to Jamie Sinnott appropriate to his needs until he reached the age of eighteen and that the State had been in breach

of that duty. As far as this court is concerned it would seem to me that two principles immediately arise here. First of all, this court

cannot be bound by any agreement or concession as to matters of law. Secondly, this court must, as far as possible, avoid deciding

matters which are not now under appeal. As some of the matters under appeal are intertwined with other matters no longer under

appeal, the full application of the second principle may not be entirely possible.

In considering the parameters of the appeal there is another issue which needs to be considered and which I have already mentioned.

To some extent when it came to the reliefs, the orders of the High Court appeared to have been drawn up by reference to the

respective statements of claim rather than by reference to the actual judgment of Barr J. Presumably this is because at one point in

the judgment the learned trial judge did state that the plaintiffs were entitled to the relief sought in the statement of claim. This

court, however, should only concern itself with the relevant findings of fact and law by the learned trial judge as expressed in his

written judgment. I propose now to examine what those findings were, first in Jamie Sinnott’s action and secondly, in Mrs. Sinnott’s

action.

Although at p. 64 of the judgment the learned High Court judge stated that both plaintiffs were entitled to the declarations which

they claimed in their respective statements of claim and “to damages arising out of breach of their constitutional rights, negligence

and breach of duty by the State in that regard”, it seems quite clear that in the case of Jamie Sinnott, at least, only one

constitutional duty was analysed and found to be breached in the judgment and that is the duty under Article 42.4 to provide for free

primary education. Section 4 of Article 42 does not actually stop there but goes on to provide that the State “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.” But as I read the judgment of Barr J., he has concerned himself only with the first part of section 4 and,

indeed, no argument was put forward on behalf of the respondents in this court that the remainder of the section was relevant.

Conceivably, the constitutional requirement that “when the public good requires it” the State must provide other educational facilities

or institutions could have been invoked by the plaintiff/respondent but as it was not, I do not intend to express any view on its

relevance. The point was made at the hearing of the appeal that normally under the separation of powers principles, the courts do

not determine what might be required by the public good. But I am not convinced that there would not be exceptions to that

principle. For the purposes of this appeal, therefore, I am regarding the alleged failure to provide for free primary education to Jamie

Sinnott as the only breach of constitutional duty found. The issues of common law negligence and breach of duty were not dealt with

by the learned trial judge in his judgment and were not argued before this court and, therefore, I do not think that they arise for

consideration.

In relation to breach of constitutional rights the position of Mrs. Sinnott’s appeal is somewhat different. The learned trial judge, in

addition to finding breaches of constitutional duty to her by the State under Article 42.4 of the Constitution, also found breaches of

constitutional duty to her under Article 41.2 and Article 40.1.

Given that the complaint against the State giving rise to both actions is a complaint that appropriate training and education was not

given to Jamie Sinnott, having regard to his autistic condition, I can understand that there is an arguable case that in such

circumstances a constitutional duty would be owed to Mrs. Sinnott under Article 42.4, but I find it impossible to understand how that

basic complaint underlying both actions could give rise to breaches of constitutional duty to Mrs. Sinnott under Article 41.2 or Article

40.1. None of the conduct of the State, as established in the evidence, was tantamount to any attack on the Sinnott family in its

constitution and authority nor it would seem to me, does an equality issue arise under Article 40.1. Insofar as the learned High Court

judge found that there were breaches of these two constitutional provisions, I am of opinion that his decision was wrong. As to

whether he was correct in his view that there was a constitutional duty under Article 42.4 and that it had been breached is a

question to which I will return later in the judgment.

In considering the matters under appeal it is important to note that there has been no appeal against any finding of fact by the

learned trial judge. In considering the question of future reliefs therefore I am assuming that those findings of fact were correct.

THE FACTS

The facts are exhaustively dealt with in the judgment of Barr J. and again in the judgment of the Chief Justice on this appeal. I find it

unnecessary to repeat them in this judgment.

THE LAW

For the purposes of determining whether the learned High Court judge made the appropriate orders or not, it is necessary first to

consider what is the correct interpretation of the first part of Article 42.4 of the Constitution. Although as I will be explaining, I am

not of the view that a historical interpretation of the Article must, for all time, be regarded as the correct interpretation, it is

nevertheless important in interpreting any provision of the Constitution to consider what it was intended to mean as of the date that

the people approved it. I do not think that any judge or lawyer as of 1937 would have had any difficulty in that task. The expression

“primary education” was in common currency and it meant the type of schooling that was provided in the so called national schools

up to about the age of twelve. The word “free” meant what it said. Every child was to be entitled to such primary education free of

charge. I doubt very much that it would ever have occurred to anybody in 1937 that the obligation on the State meant anything

more than that. Furthermore, I would be reasonably satisfied that the draftsman of Article 42.4 intended the word “education” to

have the meaning ascribed to it by Kenny J. in Ryan v. The Attorney General [1965] I.R. 294. In his judgment in the High Court in that

case Kenny J. said the following at p. 310:-

“The education referred to in section 1 must, therefore, be one that can be provided in schools and must, therefore, be one

of a scholastic nature.”

But in limiting the meaning of “education” it seems clear that Kenny J. had in mind that it was intended to cover only the kind of

teaching or training that is done in schools. I do not think that he was using the word “scholastic” in a strictly literal sense. In the

same case in the Supreme Court, Ó Dálaigh C.J. at p. 350 rejected a contention of counsel for the plaintiff in that case that “the

provision of suitable food and drink for children” was physical education, holding that that was “nurture, not education”. The former

Chief Justice, however, then went on to give a definition of “education” which arguably was wider than that intended by Kenny J. Ó

Dálaigh C.J. said that:-

“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.”

This formulation of words by Ó Dálaigh C.J. legitimises (if such legitimation were ever required) a reinterpretation by this court of the

expression “primary education” in the light of modern knowledge of the educational requirements of handicapped children which are

totally different from that which was perceived in 1937. In a somewhat different context Walsh J., in his judgment in the Supreme

Court in McGee v. Attorney General [1974] I.R. 284 at 319, commented as follows:-

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

concepts. The development of the constitutional law of the United States of America is ample proof of this.”

It would seem to me that this principle should apply to the interpretation of any article of the Constitution, but particularly the

articles relating to fundamental rights. I would, therefore, accept the basic proposition put forward by counsel for the

plaintiffs/respondents and supported by the learned trial judge that the expression “primary education” must include suitable

education for mentally handicapped children. But while I accept the basic proposition, I believe that even on a contemporary

interpretation of the Constitution it is much more limited in application than has been put forward on behalf of the

plaintiffs/respondents.

It was pointed out by this court in Crowley v. Ireland [1980] I.R. 102 that the duty of the State under Article 42(4) is not to provide

free primary education but rather to provide for free primary education. But in my view for the purposes of this case nothing turns on

that distinction. Either the State itself must provide the necessary educational requirements of the autistic child or it must fund the

availing by the child of such services in some private institution or service.

There are other aspects of Article 42.4 which do need to be considered. First of all, I would accept the argument made by Mr.

Fitzsimons, counsel for the appellants, that in the context in which Article 42.4 is placed, the duty arising under it is a duty owed to

children and not to adults. I do not attach any significance to the absence of the word "children" in Article 42.4. I am deliberately

using the word “children” as effectively meaning non-adults. While it does not fall to be determined in this case, I would be of opinion

that in the case of the vast majority of children in this State who are non-handicapped the constitutional duty is discharged simply by

ensuring that there are schools providing the necessary minimum education available for every child and that the education therein

will be provided free of charge. The Constitution must be interpreted in the light of the realities of life. One of those realities is that

no matter how efficient an education system there may be, there cannot be a guarantee of high quality teaching. It may well be,

therefore, that largely due to poor teaching in a particular school a child who has difficulty in learning to read and write may never

acquire those skills. But apart from possibly exceptional circumstances, such a child either at the time of schooling or in later life

would not be entitled to bring an action based on an alleged breach of Article 42.4. Still less would some adult immigrant be entitled

to invoke the Article, an idea which was mooted at the hearing of the appeal. But in the small percentage of mentally handicapped

children the scope of the constitutional duty on the State may be different. If I am right in my view that Article 42.4 relates only to

children and not adults then I think that in the case of mentally handicapped children the duty is owed to them as children only and

not as adults. I cannot accept that there is no such thing as a mentally handicapped adult. Merely because some mental or physical

abilities do not surpass those of a young child if they have even reached that stage, does not mean that in ordinary parlance these

children do not become adults. Adulthood is as much to do with physical development as anything else.

If I am right in my view so far, then the practical effect is that whereas primary education might be regarded as education up to the

age of twelve in the case of a normal child, because of slow learning or learning incapacity, the period to be covered by the

expression “primary education” may obviously have to be extended in the case of handicapped children. In that sense, the arbitrary

choice by the State of the age eighteen is not necessarily illogical. In the perception of most people a child becomes an adult at

eighteen.

It seems quite clear on the evidence in this particular case that at least in relation to this plaintiff, Jamie Sinnott, unless the

necessary basic training and education is continuous there is danger that he effectively unlearns everything that he has learned.

Accordingly, no matter how appropriate the education or training afforded to him by the State in purported discharge of its obligations

under Article 42.4 might have been it could be rendered useless in adulthood if it was stopped at the age of eighteen. While there has

been no evidence before the court of the position in relation to forms of mental handicap other than autism, I would be surprised if

this “unlearning” aspect applied in all forms of handicap. For instance I do not think that it would apply in the case of a Down

Syndrome child. But I accept that it probably does apply in other categories of mentally handicapped children. Where it does not

apply the constitutional duty would clearly come to an end at probably about the age of eighteen as suggested by the State in this

case or at the end of whatever might in all the circumstances be a reasonable though lesser extension over the normal period of

primary education. I have carefully considered whether the position might be different in cases where the “unlearning” problem arises.

It could be argued that even though the duty is to a non-adult, it cannot in practice be effectively discharged unless there is

continuing training into the future. But I have reluctantly come to the conclusion that to so hold, would amount to an excessive

straining of the wording of Article 42.4 when read in context.

In the conclusion which he reached the learned trial judge relied primarily on the judgment of O’Hanlon J. in O’Donoghoe v. Minister for

Health [1996] 2 I.R. 20. No appeal from that judgment was heard by this court. It is necessary now to consider the judgment

carefully.

The principal issue considered by O’Hanlon J. was whether a severely mentally handicapped child was educable at all. It is quite clear

from the resumé of evidence which the learned judge gave in his judgment that there was ample evidence to support the finding of

the judge that the plaintiff, as a severely mentally handicapped child, was educable. O’Hanlon J. based his conclusions on evidence of

research and experience which long post-dated 1937. For the reasons which I have already indicated in this judgment, I believe that

the learned judge on foot of such evidence was entirely justified in giving a modern interpretation to Article 42. One of the witnesses

in that case was a Mr. John Twomey, an educational and clinical psychologist employed as principal and chief psychologist at the

Cope Foundation from 1970 to 1982. He was a member of the working party which produced the “Blue Report” on the education and

training of severely and profoundly mentally handicapped children in Ireland in the year 1983, but his evidence in court was that

considerable further developments had occurred since then. He was apparently asked what meaning he gave to the word “primary”

when linked with education and he said that it meant “first” or “basic” education for children. As it would have been for the court and

not a witness to ascribe a meaning to the word “primary” it must be assumed that this line of questioning was simply to ensure that

he was properly focussed when giving the court his views about basic education for mentally handicapped children. According to the

judgment Mr. Twomey considered that such children should be given education from four to eighteen, the implication being as I

understand the judgment that that is the period which would be required for such children to have a “basic” education. At p. 70

O’Hanlon J. says the following:-

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

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

(1) Age of commencement: early intervention and assessment being of vital importance if conditions of mental and

physical handicap are not to become intractable.

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

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

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

(3) Continuity of education: the lengthy holiday breaks which take place in the life of the ordinary primary school appear

likely to cause serious loss of ground which may never be recovered, in the case of children with severe or profound

handicap. Accordingly, to deal adequately with their needs appears to require that the teaching process should as far as

practicable, be continuous throughout the entire year.”

I think that it is correct to adopt a modern interpretation of Article 42 and I find no reason to disagree with the conclusions reached

by O’Hanlon J. in the O’Donoghoe case although some of the sources relied on might be considered of doubtful value in an Irish

court. But I find nothing in the judgment of O’Hanlon J. to support the view that a handicapped child may be entitled under Article 42

to some kind of education or training for the rest of his or her life or indeed into adulthood at all. I am unable to discern in Article 42

no matter what contemporary interpretation one gives to it any justification for the view that it continues to apply into adulthood. I

am, therefore, persuaded by the argument of Mr. Fitzsimons that the duty does not extend beyond the age of eighteen.

It is important that at this point I refer to part of the judgment of the Chief Justice which I have had the benefit of reading. The Chief

Justice is clearly of the view that as Jamie Sinnott was twenty-two at the time of the High Court hearing and as the State has

accepted liability for the High Court award of damages to date, this court can only consider whether the right to free primary

education continued beyond the age of twenty-two and is precluded from considering whether it came to an end at the age of

eighteen. It is pointed out by the Chief Justice that there is no appeal by the State against the finding that the right continued

beyond the age of eighteen and at least to twenty-two. Needless to say, I entirely subscribe to the view of the Chief Justice that an

unappealed High Court decision on a constitutional issue, or indeed on any other issue, must be treated as being an authoritative

statement of the law. But rightly or wrongly, I interpret the approach adopted on behalf of the Minister on this appeal rather

differently. He is accepting liability for the award of damages to date and neither the amount of the award or liability for it is in issue

on this appeal. But in considering the potential future liability of the Minister, his counsel are not precluded, in my view, from arguing

as a reason why there can be no liability into the future, that the constitutional right came to an end at age eighteen. They are

putting forward that proposition as a legitimate argument in an aspect of the appeal which is before this court.

In the light of the view which I have expressed that the constitutional duty does not extend into adulthood but that the duty did

continue until the age of eighteen in the special circumstances of this case, the question arises as to what parts of the order of Barr

J. ought to stand and what parts ought to be set aside.

First of all, I would uphold the main thrust of the declaratory order which the learned High Court judge made, but I would vary the

wording so that it would read as follows:-

“The court doth declare that the first-named defendant in failing to provide for free primary education up to the age of

eighteen for the plaintiff appropriate to his needs as a severely autistic child with related profound mental and physical

handicap has deprived the plaintiff of his constitutional rights pursuant to Article 42.4 of the Constitution.”

I would express no view as to Jamie Sinnott’s legal entitlement to damages for breach of that constitutional right as that issue is not

before this court the parties having agreed on a sum for damages.

I would obviously uphold the part of the order which directs that an application be made to have the plaintiff taken into wardship.

As Jamie Sinnott has long ago reached the age of eighteen I would set aside the mandatory injunction directing the first-named

defendant to provide for free primary education into the future and the orders for the provision of funding. It must logically follow that

I would also set aside the provisions for the review of the mandatory injunction and damages in April, 2003 and I would set aside any

orders for damages for the future or providing for the possibility of damages for the future.

At the hearing of the appeal there has been considerable debate about separation of powers and, in particular the difficult question of

when if at all the courts can order the State to allocate funds to a particular project even if there is a constitutional obligation to

provide for such a project. This interesting question was analysed to some extent by Costello J. in O’Reilly v. Limerick Corporation

[1989] ILRM 181. The learned judge in that case pointed out that questions relating to raising common funds by taxation and the

mode of distribution of common funds are determined by the Oireachtas although wide discretionary powers may be given to public

authorities and public officials as to their distribution in particular cases. The judge went on to observe that the courts’ constitutional

function is to administer justice and that a suggested supervisory role as to how money should be spent in a particular instance was

not administering justice as contemplated by the Constitution. Costello J. went on to point out that in order to form a view as to

whether there was an unfair distribution of national resources the court would have to make an assessment of the validity of many

competing claims on those resources, the correct priority to be given to them and the financial implications of the plaintiff’s claim. The

judge opined (and I agree) that the courts were singularly unsuited for that task particularly having regard to the incremental way by

which particular problems may come before them. It is the peculiar role of the Oireachtas to make these decisions.

If I had taken the view that there was a continuing constitutional duty into the future owed by the State to Jamie Sinnott I would

have had to consider particularly in the light of the principles identified by Costello J. whether the kind of orders made by Barr J. would

be permissible or appropriate. As this matter does not have to be decided by me having regard to my judgment, I would reserve my

position, but I do think that in very exceptional circumstances it may be open to a court to order allocation of funds where a

constitutional right has been flouted without justification or reasonable excuse of any kind. I would have great doubts, however, that

the courts should ever involve themselves in making the detailed kind of orders which were made in some of the American cases cited

in relation to education.

The ongoing education into the future which the trial judge considered that the State was constitutionally bound to provide is

obviously highly desirable having regard to the findings of fact of the learned trial judge and it may well be that the Minister is at any

rate now legally obliged to provide such services under the Education Act, 1998. But this court is not concerned with those issues but

only with the issue of whether there is a continuing constitutional obligation after the age of eighteen in this particular case and, in

my opinion, there is not. I would, therefore, allow the appeal to the extent which I have indicated.

There is only one other matter on which I would like to comment. There has been some discussion at the hearing as to whether the

requirements of Jamie Sinnott can be described as educational requirements at all or whether they are more in the nature of health or

therapy requirements. It has been pointed out for instance that in the ordinary way primary education for a normal child would not

commence before the age of four and that toilet training etc. which goes on in the home before that is not “education” in any

accepted meaning of the term. The argument then runs that Jamie Sinnott, because of his condition, never reaches the stage of

being able to benefit from any kind of training that could reasonably be described as “education”. I would wholly reject this argument.

The word “educate” in its Latin derivation refers to bringing or leading out. If a handicapped child, unlike a normal child, cannot

naturally acquire skills in the home but has to have special training to acquire them then I cannot see why that special training would

be inappropriately described as “education”. At any rate I do not think that health therapy and education requirements are mutually

exclusive of each other. They can overlap and can be given a double if not a treble description. I, therefore, find no fault in the trial

judge’s interpretation of “education” in the case of an autistic child.

I now turn to deal with Mrs. Sinnott’s action. I can do so very briefly. The learned High Court judge made (inter alia) the following

declaratory order in her action:-

“The Court doth declare that the first-named defendant in failing to provide for free primary education for the plaintiff’s son,

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

discriminating against the plaintiff's son with respect to the provisions of appropriate educational facilities vis-à-vis other

children has deprived the plaintiff 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”.

Although numerous constitutional provisions are cited in the declaratory order they all are alleged to relate directly or indirectly to the

basic complaint of Mrs. Sinnott that Jamie did not receive appropriate constitutionally required education. But any duty to educate or

provide education or provide for education can only be owed to the person who is to be educated and not to the mother or any other

relative of that person. Of course, in so far as the duty is to provide for primary education free of charge it may well be argued that

the duty not to impose a charge is a duty owed to the parents. But that issue does not arise in this case. The damages awarded to

her apart from the £15,000 special damages were not the cost of having to privately fund suitable training and education but rather

general damages. It has already been pointed out in this judgment that notwithstanding the terms of the order in Jamie Sinnott’s case

the only constitutional breach in respect of which the learned trial judge gave a reasoned judgment was a breach of the first part of

Article 42.4. But even if an issue did properly arise under Article 40.1 it would be an equality issue involving Jamie Sinnott. Again,

there is nothing in the written judgment explaining any reasons why there might have been infringements of Article 40.3.1 and 2 but if

there had been it could only have been the constitutional rights of Jamie, which would have been infringed and not of his mother.

There is no doubt that in an appropriate case the mother might be able to claim breaches of constitutional duties towards her under

Articles 41.2.1 and 41.2.2 as these are constitutional provisions directly dealing with the family, but it does not seem to me that any

of the behaviour of the State disapproved of by the learned trial judge constituted an attack on the family. For the same reason it

would not seem to me that Article 42.1, 2 and 3 are in any way relevant to this case. Indeed, quite apart from the fact that no

parental rights were being attacked contrary to those Articles, the provisions of the Articles themselves could not be relevant to the

issues in this case. I therefore fail to understand how she can be held to have a right of action for infringement of any alleged

constitutional rights. I am in complete agreement also with the analysis of Mrs Sinnott’s claim in the judgment of the Chief Justice.

Any contraventions of the Constitution that there were appear to have been breaches of constitutional duty owed to Jamie Sinnott

rather than to Mrs. Sinnott. I would, therefore, allow the appeal in Mrs. Sinnott’s case except in relation to the award of £15,000

special damages.