Solicitor says parents of the disabled have right to sue
The solicitor who represented Mr Richard Clare in his failed High Court action has defended the right of parents of children with disabilities to take legal action when all else fails, writes Carol Coulter, Legal Affairs Correspondent.
Mr Clare suffered from Attention Deficit Hyperactivity Disorder and had, through his parents, sued the Department of Education for not providing appropriate educational supports.
Mr Ernest Cantillon, who represented the family, was responding to comments from the Minister for Education, Ms Hanafin, where she accused solicitors taking such cases of "abuse of the legal process".
Ms Hanafin said: "The decision to pursue this case for 16 days in the High Court naturally resulted in considerable legal costs. I am concerned that such legal cases are costly and are diverting money from the provision of services for children with special educational needs.
"The position of the Department of Education having being upheld in this case, it was open to the Department to apply for its costs to be met by the plaintiff.
"While I did not want to penalise the parents by seeking costs in this case, I feel it is important to highlight to solicitors that unjustified claims are an abuse of the legal process and will be at their own expense and not that of the State.
"In taking my decision, I have had regard to the prospect of actually recovering costs as well the impending establishment of alternative routes for parents to appeal against allocated provision with the enactment of the Education for Persons with Special Educational Needs Act 2004."
Mr Cantillon, who also represented Mr Jamie Sinnott in his successful case in the High Court against the Department of Education and a number of other cases involving autistic children, said: "If losing cases is the criterion, what about the Department? The same should apply to it. The Minister lost all the cases it defended. Did it put in unmeritorious defences?"
He said that in the Sinnott case, Mr Justice Barr commented on the unmeritorious nature of the Department's defence.
"Discovery showed that the Department of Education and the Department of Finance colluded to deny people facilities on financial grounds.
"Since the Paul O'Donoghue case [which laid down the obligations on the State to provide for children with disabilities], money has been put in. But this is not as a result of the graciousness of the Minister, but because they realised they are accountable.
"This case was not taken lightly by us or by Mrs Clare on behalf of her son. It was taken when Richard was expelled from school and no other provision was made for him coming up to his Junior Cert. The school could not cope and he needed remedial help. The Department did nothing. The mother beseeched the Department before she came to lawyers.
"We wrote to them and nothing happened. We consulted three senior counsel and two junior on the case and we had our own experience. All the lawyers thought the case had merit.We now have the judgment, which makes certain things clear. But if losing a case is a judgment on its merit, what about the Department itself?"
Mr Cantillon said it appeared the Department was attempting to put pressure on lawyers not to take such cases. He said this was linked to the approach in the 2004 Disability Bill, which restricted the right of the families of people with disabilities to go to court in pursuit of their entitlements.
"Bureaucratic obstacles are put in people's way in getting to court," he said.