Ruling on autistic boy's education challenged

 

THE SUPREME Court has begun hearing an appeal by a young autistic boy against the High Court’s refusal to compel the State to provide funding into the future for a specific form of education for him.

In what was regarded as a test case for autistic children seeking education according to the system of Applied Behavioural Analysis (ABA), Seán Ó Cuanacháin (10), suing through his father Cian, of Woodbine Avenue, Mountain View, Arklow, Co Wicklow, had sought orders compelling the State to provide funding for education according to ABA.

The case ran for almost 70 days in the High Court, incurring costs estimated at about €5 million.

In his judgment in 2007, Mr Justice Michael Peart ruled the programme of education being provided by the State for Seán – an eclectic and Model A programme – was “appropriate autism-specific educational provision” and, in those circumstances, declined to make orders requiring the State to fund an ABA programme.

The court heard yesterday Seán was now receiving education according to the ABA method and the State was providing funding for that.

His parents contend the State is required to provide such funding into the future.

Paul Sreenan SC, for the child, said the appeal relates to the past failure by the defendants to discharge various duties to Seán, such as speech and language therapies, and for the future provision of ABA education and appropriate therapies for the boy.

The Supreme Court – comprising Chief Justice John Murray, Mrs Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mrs Justice Fidelma Macken – on hearing that the State was funding ABA for Seán, asked if the central issue in the appeal was therefore moot. The court has invited both sides to make submissions on that matter when the case resumes today.

Mr Sreenan said the State had initially refused to provide funding for ABA for Seán and instead proposed to provide for his continued education on the basis of an eclectic model.

Seán is now receiving State funding for ABA and his parents’ “clear preference” was for him to continue to be educated through the ABA method, counsel said.

Counsel argued the High Court had erred in holding the eclectic method was appropriate for Seán and also erred in failing to consider the failure by the State to provide Seán with ABA breached provisions of the European Convention on Human Rights.

While the High Court had awarded damages to Seán against the Health Service Executive (HSE), damages also ought to have been awarded against the State over its failure in its constitutional and statutory duties towards Seán, Mr Sreenan also argued.

Mr Justice Peart had awarded Seán almost €61,000 damages against the HSE because of “unreasonable” delay in diagnosing his condition and in providing appropriate therapies to him. The HSE has cross-appealed that ruling to the Supreme Court.

The State was liable for the failure to provide an education appropriate to Seán’s needs following his diagnosis, counsel said. That failure occurred during the 27 months between December 2002, when Seán was diagnosed, to February 2005 when his full-time placement was sanctioned.

Mr Sreenan also argued the High Court had ignored the issue of the parents’ choice for their son to be educated through the ABA method, he said.