City of Waterford VEC -v- Department of Education and Science & Ors, [2011] IEHC 278 (2011)

Docket Number:2011 266 JR
Party Name:City of Waterford VEC, Department of Education and Science & Ors
Judge:Charleton J.
 
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THE HIGH COURT 2011 266 JR

BETWEEN

CITY OF WATERFORD VOCATIONAL EDUCATIONAL COMMITTEEAPPLICANTAND

THE SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SCIENCE, TOMMY FLYNN, JACQUELINE Ní FHEARGUSA AND SEAN SLOWEYRESPONDENTSAND

ALPHA BETANOTICE PARTY

JUDGMENT of Mr. Justice Charleton delivered on the 27th day of July 2011

  1. Section 29 of the Education Act 1998 provides for appeals from decisions within schools whereby a proposed pupil is declined enrolment, or an existing pupil is either suspended or expelled. Any such decision by school authorities may be appealed to the Secretary General of the Department of Education and Science. That official appoints a committee to hear the appeal, which I shall refer to as “the appeals committee”. Section 29(4) indicates the procedures to be followed on that appeal. Hearings are to be conducted with a minimum of formality, consistent with giving all of the parties a fair chance to put their point of view; appeals are to be dealt with within thirty days of the receipt; and before there is any hearing, the parties are to be encouraged to reach any agreement that may be possible in the circumstances. Section 29(5) requires the appeals committee to make a written decision, giving reasons therein for its determination, and to notify the Secretary General of the Department who, under subs. 7, will notify the interested parties. These will usually be the parent of a child and the board of management of the school in question. Where an appeals committee, under subs. 6, allows an appeal, it can make a recommendation so that any issue which was upheld on the appeal may be addressed and remedied. These appeals are conducted by way of a complete re-examination. In other words, they are broadly the same as an appeal from the Circuit Court to the High Court; although the appeals committee is not bound by court procedures. This means that on appeal, the parties will be free to put fresh documents before the committee, or to offer new oral views or, what might loosely be called, oral testimony and to bring forward new people to be heard. Subsection 10 makes this clear; it provides that the appeals are to be “by way of a full re-hearing”.

  2. In Board of Management of St. Molaga’s National School v. Secretary General of the Department of Education and Science [2010] IESC 57, (Unreported, Supreme Court, 23rd November, 2010) Denham J., for the Supreme Court, analysed the form of the relevant legislation and then stated at paras. 25 to 26:-

    “Consequently, the appeals process enables the appeals committee to have a full hearing on the matter and if so determined to replace its judgment on the matter for that of that [board of the school] and to make such recommendations as it considers appropriate. Such a decision is anticipated as a possible outcome of an appeal by the section itself, in the provisions enabling a Secretary General to require a board to remedy a situation in accordance with the recommendation of an appeal committee.

    Thus the jurisdiction of an appeals committee is not limited to a review, for example, of the lawfulness or reasonableness, of a decision of a board of management.”

    The Facts in Issue

  3. The pupil in question I will call Delta Beta, as he is a minor. At the time when all of the trouble to which I shall refer came to a head, he was only thirteen years of age. He was a pupil in St. Paul’s Community College in Waterford City, which is a secondary school. Difficulties began in September 2009 almost as soon as he had entered first year. Up to Christmas 2009, there were a number of minor incidents of discipline and conduct and some more serious ones. The school responded by suspending him on a number of occasions. The school authorities also offered him counselling by arranging two home visits and by involving the school chaplain. After Christmas his bad behaviour persisted. There was name calling, using very unpleasant language, striking another student with his foot, assaulting a student and a failure to engage with school discipline. There were, again, counselling sessions and disciplinary reports and at least one further home visit. It was clear that the pupil was disruptive. On one...

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