State proposal for autistic boy upheld

A High Court judge has decided that the State has advanced an "objectively adequate" and "constitutionally appropriate" proposal for the care and education in a unit in Co Dublin of a severely autistic boy with serious behavioural problems.

The boy's parents and experts called by them had expressed concerns that what was on offer would not meet his needs and had proposed an alternative option, the Bangor centre for developmental disabilities in north Wales.

Annette O'Carolan had told the court her son, Lewis, was "dying on his feet for intervention" and that she had heard proposals for years for his care but "never anything concrete".

"He is becoming more entrenched in the world of autism and it's just heartbreaking to watch."

Mr Justice John McMenamin yesterday directed that Lewis be placed in Woodlawn, a unit near Lusk, Co Dublin.

He urged that the considerations which gave rise to the unfortunate circumstances of the case should not now be used as a ground for refusal to participate in the Woodlawn proposal which, while it might not accord with all the wishes of the O'Carolans, represented "a significant step forward" as part of a process to be maintained and supervised by the courts.

The Woodlawn proposal was first advanced by the State and the Northern Area Health Board after legal proceedings were brought by the boy's parents, Colm and Annette, of Norfolk Road, Phibsboro.

In a reserved judgment yesterday, the judge said no legal authority had been cited to the effect that parents were entitled to choose the exact type of care and education which their child received.

While the parents' preference was for the Bangor facility, the evidence showed that "a constitutionally appropriate provision" had been put in place and was available to Lewis here, he held. The court was satisfied the issue was not whether Woodlawn was better than Bangor but whether it was "appropriate".

Having heard evidence from experts, the judge said that, insofar as there was any conflict between the experts, he preferred the evidence of the State experts because their evidence was more directly focused on the issues the court had to consider.

He considered the facility at Woodlawn was "objectively adequate" and that it complied with the constitutional and statutory duties of the Minister for Education and Science, the Minister for Health and Children, the State and the Northern Area Health Board.

He said the kernel of the case was whether the State had breached its duty under Article 42 of the Constitution to provide for free primary education for Lewis.

That question was primarily one of fact and the court had found the undertakings given in relation to Woodlawn were sufficient to discharge any legal obligations of the State - provided such arrangements as set out remained in place and that each of the "concrete arrangements" as identified was observed.

While those steps might not be sufficient to address all of the parents' concerns, the judge said he found as a matter of fact they were sufficient to discharge the statutory and constitutional duties of the respondents.

He also added that the prescription and pursuit of what may be seen as "best practice" in this area of education must, in this State, remain a matter for the executive and legislature where such an issue cannot be identified as a legal or constitutional duty.

He was having regard to issues of principle including whether the State was obliged to provide a disabled child with education of their parents' choosing or simply to provide a standard of care and education that was adequate from an objective perspective.

No authority had been advanced to show the State was obliged to provide education of the parents' choice, Mr Justice McMenamin said.

He adjourned the proceedings to next week when he will consider the issue of costs and other matters.