Clare (A Minor) v Minister for Education and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T. C. SMYTH |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] IEHC 350 |
| Docket Number | Record No. 12383P./2000 |
| Court | High Court |
| Date | 30 July 2004 |
[2004] IEHC 350
THE HIGH COURT
Citations:
CONSTITUTION ART 40
CONSTITUTION ART 42
CONSTITUTION ART 40.1
CONSTITUTION ART 40.3.1
CONSTITUTION ART 40.3.2
CONSTITUTION ART 42.3.2
CONSTITUTION ART 42.4
EDUCATION ACT 1998 S29
EDUCATION (WELFARE) ACT 2000
SINNOTT V MIN EDUCATION 2001 2 IR 545
O'DONOGHUE V MIN EDUCATION 1996 2 IR 20
CROWLEY V IRELAND & ORS 1980 IR 102
EQUAL STATUS ACT 2000 S4(4)
EQUAL STATUS ACT 2000 S7(1)(d)
EDUCATION ACT 1998
EQUAL STATUS ACT 2000 S7(4)(b)
Judicial review - Discrimination - Education - Whether the plaintiff’s special educational needs, as a sufferer of ADHD were fulfilled by the defendants.
Facts: The plaintiff, who suffered from Attention Deficit Hyperactivity Disorder (ADHD) sought a declaration that the defendants discriminated against him in respect of the appropriate education facilities compared to other children in failing to provide appropriate education for the plaintiff appropriate to his needs as a person suffering from ADHD and deprived him of his constitutional rights pursuant to Articles 40 and 42. The plaintiff also claimed damages for negligence, breach of duty and breach of his constitutional rights. The plaintiff completed primary level education and was not diagnosed as suffering from ADHD until he was due to commence his second year in secondary school. The plaintiff received a number of detentions and was eventually expelled from secondary school. However, he received private tuition, which was provided and paid for by his secondary school. Thereafter, the plaintiff attended a vocational school and his condition improved.
Held by Smyth J. in dismissing the plaintiff’s case:
1. That the staff at the plaintiff’s primary school were not negligent in failing to diagnose or to have diagnosed on reference ADHD. Furthermore, the officers of the defendants did all they reasonably could at the time to try to ensure that the plaintiff received appropriate education to his needs.
2. That the provision of private tuition and a place in a vocational school amounted to positive discrimination by the defendants and as such ought not to be considered as discrimination. Furthermore, the secondary school did not discriminate unfairly, unreasonably or at all in expelling the plaintiff.
3. That the plaintiff’s human, constitutional, statutory and common law rights were fairly and properly observed by both the defendants and the schools at which the plaintiff attended.
Reporter: L.O’S
(a) A declaration that the Defendants, each and either of them, in failing to provide appropriate education for the Plaintiff appropriate to his needs as a person suffering from Attention Deficit Hyperactivity Disorder (or other condition requiring special education), are discriminating against the Plaintiff in respect to the appropriate education facilities vis-a-vis other children and have deprived the Plaintiff of his constitutional rights pursuant to Articles 40 and 42 of the Constitution, and in particular Articles 40.1, 40.3.1, 40.3.2, and Articles 42.3. 2 and 42.4.
(b) Damages (including aggravated, exemplary or punitive damages) for negligence, breach of duty, breach of statutory duty and breach of the plaintiff's constitutional rights.
(i) free education for the Plaintiff appropriate to his needs; and
(ii) education for the Plaintiff appropriate to his needs.
(II) The second-Named Defendant to provide respite care and family support services or other services to the Plaintiff pursuant to the Health Acts.
This action came on for hearing within four months prior to the infant Plaintiff reaching his majority on his 18th birthday. All witnesses agreed that he was an intelligent boy whose verbal communications skills were high and, judging from the evidence of Dr. O'Loughlin [T10(17/12/03) p122 Q388125/6], was an exceedingly pleasant and agreeable person, but for some unstated reason I did not have the benefit of hearing from himself first-hand what were his past and then present problems in relation to his education and his schooling in particular. It may be that notwithstanding the boy's liking for the spoken word, and being happiest when taking part in amateur dramatics or drama workshops during summers holidays in his teenage years, that it was thought that he ought not to be brought into the court atmosphere for some reason. While I may be mistaken in my belief that on Friday 19th December 2003 he was seated at - - the back of the Court with his mother while Dr. O'Loughlin was giving evidence, I expressly draw no inference or adverse inference from his failure to tender evidence. I mention the fact because it is both usual and common in many negligence cases of schoolyard accidents or bullying that young boys and girls of much more tender years than the infant Plaintiff in this action tender evidence to the Court - -
The Plaintiff is the younger of two boys who were adopted by the Next Friend and her husband (who I was informed on the opening of the case would be giving evidence, but who did not, and thus deprived me of the opportunity of making any assessment as to the interrelationship he had with Richard, both as a man, as a father, and how the relationship between father and mother was, so as to have a full understanding of Richard's position in terms of a consistency of trust, support, guidance and discipline). Richard's elder brother, the only other member of the household - - who was apparently a model student and had progressed successfully to third-level education and was on the threshold of a professional qualification as an actuary - - did not give evidence of his relationship at home with Richard.
These matters are mentioned not in criticism but to indicate the one-dimensional view available to the Court through Richard's mother as to the home - - which is the primary educator of a child. Professor Mace considered Richard as adroit [T1 (2/12/ 03) p77 113–14]; Dr. O'Loughlin stated Richard was very much a man who knows his own mind [T12 (19/12/03) p63 Q273 l26–27].
Much emphasis throughout the hearing of the case was on the evidence of a Dr. F. Charles Mace, otherwise Professor Mace, whose primary qualifications were as a psychologist, whose long varied and distinguished career is set out in a fifteen-page curriculum vitae. He was the first witness to give evidence in the case. This was understandable given his availability, but it was premised on facts not all of which were borne out by the witnesses as to fact or other witnesses. This notation is not critical, for I appreciated the constraints on the availability of a witness. Mrs. Clare was present in court throughout the evidence given by Professor Mace [T1 p13 Q50 l6–13]. I formed the impression that her observation of Richard being "hyper" per Ms. Kay O'Connor at a very early age was intended to have the significance attributed to such observations by Professor Mace.
Richard was born on 20th April 1986. He and his brother, Conor (until recent years) lived in Waterford with his parents. His father is a one-time credit controller and is a manager of a credit union. Mrs. Clare had been a bank clerk until she got married. Having first lived in Tralee, the parents moved to Dublin. When Conor was four years old, Richard came to the family at eight weeks old. Both parents came from families of seven and eight siblings. Mrs. Clare was the youngest of her family of four brothers and three sisters. Conor posed no problem as an infant and it seems very few or little problems thereafter as he grew up and went through school and college.
Richard was said by Mrs. Clare to have been an affectionate and loving child and funny and always talking when he was small. However, when she consulted Dr. O'Loughlin in 1999, when he diagnosed Richard as ADHD, she informed him that Richard was a cross baby. Professor Mace was informed by Mrs. Clare that Richard was very irritable and frequently crying in his first year of life. He was happy, apparently, at playschool in Dublin before he came to Waterford in November 1989. It was observed by Mrs. Clare and a Ms. Kay O'Connor, the supervisor of the playschool at which Richard attended, that he was "hyper" at the early stage of his life, a fact not conveyed by Mrs. Clare to the proprietors or teachers in either his primary or secondary schools. Mrs. Clare swore that at over age seventeen Richard still expresses his affection for her by hugging her five or six times per day. Likewise, she swears that when Richard goes to bed at seventeen-and-a-half-years old, he still hugs his father.
Conor had gone through school and university without incident and despite their differences, Mrs. Clare hoped that Richard would and will go to university.
During his time there, he was friendly and got on well with many children around his own age and in the housing estate in which he lived. Richard is not inclined to play ball games, perhaps because of dyspraxia, which affects fine motor movements - - it is completely separate from ADHD (T1 p45 Q135/137 19–25]. This is a matter that was not pursued with any degree of particularity during the hearing of the case and does not, accordingly, figure in my determinations as it is not referrable to ADHD which is the cause of...
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