O'C. -v- Minister for Education & Science & Ors, [2007] IEHC 170 (2007)

Docket Number:2004 18520 P
Party Name:O'C., Minister for Education & Science & Ors
Judge:Peart J.

Neutral Citation Number: [2007] IEHC 170 THE HIGH COURTRecord Number: 2004 No. 18520PBETWEEN: SOC (a minor suing by his father and next friend, COC)PlaintiffAND The Minister for Education and Science, the Minister for Health and Children, The Health Service Executive, Ireland and the Attorney GeneralDefendantsJudgment of Mr Justice Michael Peart delivered on the 16th day of May 2007:S is a young boy born on the 12th June 2000, and who in the autumn of 2002 was diagnosed as having autism. He has one older sister who is now aged eight, and during the course of this hearing, his second sister was born.S has reached the age of six years and was due to access primary education starting in September 2006. This case is now concerned partly with what form or model of education that primary education should take for S, and whether what the Department of Education and Science ("the Department") has proposed by way of primary education provision for S in the area in which he resides is a provision of education appropriate to his diagnosis and his deficits, and perhaps also taking into account what interventions have been put in place for S, largely by his parents, albeit with some assistance from the State, since it was first realised that S was not developing normally.In addition to seeking certain declarations as to the breach by the defendants of the plaintiff's constitutional rights to appropriate education and health care services, and his statutory rights to same under the Education Act, 1998, the Child Care Act, 1991, the Equal Status Act 2000, and the Health Act 1970, as amended and consolidated, the plaintiff seeks damages for these breaches of rights, as well as for negligence and breach of duty, including statutory duty.Damages are sought also for breach of s. 3 of the Convention on Human Rights Act, 2003, as well as a declaration, if necessary, that the provisions of sections 6 and 7 of the Education Act, 1998 are incompatible with the defendants' obligations under the European Convention on Human Rights.In addition to those reliefs, the plaintiff seeks certain mandatory injunctions requiring the defendants to comply with their statutory duties to provide for appropriate free education, and in particular to provide the plaintiff with free primary education to be delivered only through the application of Applied Behavioural Analysis (ABA), as more particularly described and detailed in the final Amended Statement of Claim delivered on the 19th May 2006.A Statement of Claim was first delivered by the plaintiff on the 3rd September 2004. However, an Amended Statement of Claim was delivered on the 22nd April 2005, and a further Amended Statement of Claim as delivered during the course of this hearing, with leave of the Court, on the 19th May 2006. It is by reference to this final Amended Statement of Claim that the plaintiff's claims will be considered. The final version of the Statement of Claim was delivered following a ruling by this Court on the 16th May 2006 whereby certain reliefs were ordered to be struck out, namely those at (e), (f) and (g) of the Amended Statement of Claim delivered on the 22nd April 2005. The final amendments were so that the plaintiff could particularise as best he could exactly what form any mandatory order which the Court may ultimately make might take so as to be sufficiently precise and specific for the purpose of enforcement, if necessary. The need to do this has brought into sharp focus one of the difficulties facing the plaintiff, particularly in relation to the mandatory orders sought, namely to set forth with precision exactly what is being sought from the State by way of education and therapies for S, for inclusion in any mandatory order which might be granted. However, I shall return to that aspect of the case in due course.I will leave until after I have set out the extensive amount of evidence which has been given by all parties to this action the precise nature of the declarations and injunctions which are being sought by the plaintiff, since they can then be seen in the context of the evidence given.I will first set out a chronology of events leading up to the point at which in early February 2004 S entered the ABA pre-school at St. Catherine's, Barnacoyle. That chronology can be gleaned largely from the evidence given in Court by each of his parents, and the documents referred to by them. In addition, those events are interwoven by communications and correspondence which has passed in both and all directions between the parents of S, various sections of the Department of Education, bodies coming under the umbrella of the HSE, various primary school principals, as well as St. Catherine's, and so on. I will refer to those communications as required in order to assist in the narration of what appears to be the relevant chronology of events thus far. There has of course also been produced to the Court, during the course of all the evidence, many reports of one kind or another from educational psychologists on both sides, clinicians, therapists, ABA consultants and the like, and while I may dwell on those reports quite briefly in this part of the narrative of facts and events, I will come to at least some of them in more detail in other parts of my judgment as required. Finally there has been produced as part of the evidence adduced by each side to support their particular recommended primary education provision, many and varied learned articles from journals and texts of one kind or another and I will refer to these as required in due course.Having set out a relevant chronology of events up to February 2004, I will then set out as far as seems necessary, a summary of the evidence of the various witnesses called.These proceedings themselves were commenced on the 10th August 2004 by way of Plenary Summons, when S was just four years of age. At that stage his primary education was not then the primary focus of his parents' attention since he would not be required to access primary education until he reached the age of six some two years later. Rather their focus was on what was seen by them at that time as the lack of adequate or indeed any provision by the State for his pre-school placement, as well as the failure to provide him in any timely fashion with the therapies recommended for him following the multi-disciplinary assessment carried out by the Lucena Clinic in August 2002, namely speech and language therapy, occupational therapy, and physiotherapy.The diagnosis of autism was formally made in November 2002, and was communicated to the parents in December of that year. Prior to actual diagnosis, the parents had been informed that autism was a possibility and that final diagnosis came as no surprise to them.Following the commencement of proceedings, an application for certain interlocutory orders was launched, which gave rise to the usual exchange of affidavits. Eventually that application was not proceeded with in favour of an early trial of the action. That trial commenced before me on the 11th January 2006 and continued with necessary interruptions over a period of some sixty eight days of hearings and submissions until the end of July 2006.The plaintiff's parents have formed the view that what the State is proposing for S by way of primary education amounts to an inappropriate educational provision, and that as a result the State is breaching S's constitutional right to primary education appropriate to his needs. They go further than saying that what is proposed by the State will not benefit S as much as the particular autism specific education which they wish him to receive, namely one delivered solely and exclusively through ABA. They say that what is on offer for S, as it were, will in fact damage him in the sense that he will regress from where he is presently at, thereby reversing many of the gains which they say he has made as a result of the ABA he has received to date at his pre-school and at home, and that his rate of learning will slow down, if not grind to a halt and regress, should he be required to attend either of the national primary schools proposed for him, neither of which currently provide an exclusive ABA environment. On the other hand each has an autism specific class in which ABA may be provided as one element of a possible range of interventions, depending on the needs of the child. This form of primary education proposed by the State is said by the plaintiff to be not appropriate education such as would vindicate the plaintiff's constitutional right in that regard.The date by which his parents reached that view, and indeed the basis and advice, if any, upon which they arrived at that view, have been matters of some controversy during the course of the evidence which I have heard and I will come to that. But, certain declarations and mandatory orders are sought.Apart altogether from the alleged breach of constitutional rights going forward, the plaintiff also claims that in the past his constitutional and statutory rights have been breached by the failure of certain State agencies to provide any or any adequate early interventions by way of both pre-school education provision, and therapies following his diagnosis of autism at the end of 2002, and arising also from what is alleged to be a delay on the part of the relevant bodies to even assess and diagnose S in a timely fashion. This delay of itself is said to have deprived S of his entitlement to early intervention, and that as a result of not being able to access appropriate therapies and education at such an earlier stage, he has lost valuable and irreplaceable time during which his deficits could have been sooner addressed, and that this is time which cannot be made up at this stage, and that permanent loss has resulted. This claim, being in respect of past breaches of constitutional and statutory obligations and duties, is said to give rise to a claim in damages also in negligence.I will...

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