In a significant decision concerning the powers of the courts to make mandatory orders against the State in relation to the provision of education, the High Court yesterday ordered the Minister for Education and Science to provide 29 hours home tuition a week to an autistic child.
The order applies pending the provision either of an appropriate school place for four-year-old Jeremiah Cronin or the outcome of his full action against the State.
Ms Justice Laffoy also ordered the Minister to pay €300 fees a month for consultant supervision of a home tuition programme for Jeremiah.
The fact the judge made such mandatory orders against the State at interlocutory stage (pending the full hearing of the action) is considered by legal sources to be significant.
The State had argued in similar actions that, in light of the Supreme Court decision in the Mr Jamie Sinnott case, the court could not make mandatory orders. However, lawyers acting for a number of disabled children have argued that Mr Justice Hardiman's decision in the Mr Sinnott case left open the option to take proceedings seeking such orders under the Education and Equal Status Acts.
In his proceedings against the Ministers for Education and Health, the Southern Health Board, and the State, Jeremiah, suing through his mother Margaret, of Kilbarry, Macroom, Co Cork, had sought declarations that the defendants had failed to provide services appropriate to his needs as an autistic child.
It is argued the defendants, in failing to provide such services, were in breach of their obligations under the Constitution, the Education Act 1998, the Equal Status Act 2002, the Child Care Act 1991 and the Health Act 1970. Breaches of various international conventions are also alleged, including the European Convention on Human Rights.
Pending the hearing of the full action, interlocutory orders were sought requiring the provision of funding for home tuition for Jeremiah who has been diagnosed with autism of a moderate degree, and has impairments in language and social interaction. During the interlocutory hearing, the court heard the SHB has made provision for the child.
Mr Frank Callanan SC, for Jeremiah, argued the child had a constitutional right to free primary education appropriate to his needs and the defendants were obliged by virtue of the Constitution to provide for such education.
Counsel also claimed that Jeremiah was entitled to provision of speech and language therapy, occupational therapy and other therapies necessary to enable him make the best possible use of his potential capabilities, physical, mental and moral.
In his defence, the Minister for Education admits he has a constitutional obligation to provide free primary education and denies breach of that responsibility. The Minister argued that the scope of his constitutional obligation was a matter for the trial of the action.
In her reserved judgment on the interlocutory application yesterday, Ms Justice Laffoy said the reliefs being sought at this stage were designed to provide for interim measures pending full hearing.
She found the plaintiffs had established a fair issue to be tried regarding the alleged breaches of Jeremiah's rights and that the balance of convenience favoured granting the interim orders for home tuition.