Cronin v Minister for Education

• Jurisdiction: Ireland
• Judge: MS. JUSTICE LAFFOY
• Judgment Date: 06 July 2004
• Neutral Citation: [2004] IEHC 255
• Court: High Court
• Docket Number: [2003 No. 11440P]
• Date: 06 July 2004

CRONIN v. MINISTER FOR EDUCATION & ORS

DUBLIN

JEREMIAH CRONIN (A MINOR) SUING BY HIS MOTHER AND NEXTFRIEND MARGARET CRONIN

Plaintiff

THE MINISTER FOR EDUCATION AND SCIENCE

THE MINISTER FOR HEALTH AND CHILDREN

THE SOUTHERN HEALTH BOARD

IRELAND AND THE ATTORNEY GENERAL

Defendants

[2004] IEHC 255

2003 1140p

Hc 255/04

THE HIGH COURT

Synopsis:

- [2004] 3 IR 205

The plaintiff was diagnosed as suffering from attention deficit hyperactivity, autistic features and/or a hearing deficit and speech delay. The plaintiff sought certain declaratory relief, damages for breach of his constitutional rights and a mandatory injunction pursuant to the 1998 Act directing the first named defendant to provide free primary education, including support services appropriate, to the plaintiff's needs. In addition the plaintiff sought various interlocutory reliefs.

Held by Laffoy J. in granting a mandatory injunction in the terms sought on an interlocutory basis: That the relevant criteria to be applied were those laid down by the Supreme Court in Campus Oil Limited v The Minister for Industry and Energy (No.2) [1998] IR 88. The Court was not required to determine the likelihood of the plaintiff succeeding at trial.

Reporter: L.O'S.

Citations:

SINNOTT V MIN EDUCATION 2001 2 IR 545

EDUCATION ACT 1998 S6(G)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 2

EDUCATION ACT 1998 S5(4)

EDUCATION ACT 1998 S6(B)

NAGLE (A MINOR) V SOUTH WESTERN AREA HEALTH BOARD & ORS UNREP HERBERT 30.10.2001 2001/17/4608

WESTMAN HOLDINGS 1992 1 IR 15

CAMPUS OIL LTD V MIN FOR INDUSTRY (NO 2) 1983 IR 88

D (T) V MIN EDUCATION 2001 4 IR 25

1 MS. JUSTICE LAFFOYTUESDAY, 6TH JULY 2004

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-namedmatter.

APPEARANCES

For the Plaintiff:

Mr. Callanan, SC

Instructed by:

Ernest J. Cantillon & Co

39 South Mall

Cork

For the Defendants:

Mr. O'Higgins, SC

Ms. Power, BL

Instructed by:

Chief State Solicitors

Osmond House

Little Ship Street

Dublin 8

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

REGISTRAR	For judgement, Cronin
	(a minor) -v- The Minister

4 for Education and Science & others.

MS. JUSTICE LAFFOY:

BACKGROUND

5 The Plaintiff, Jerry Cronin, is a four-year-old boy and he sues for his mother and next friend, Mrs. Margaret Cronin.

6 In June, 2002 he was diagnosed as suffering from attention deficit hyperactivity, autistic features and/or hearing deficit and speech delay by a consultant paediatrician in Cork. Subsequently, in December 2002 following assessment by the Regional Autism Spectrum Disorder Service, which is funded by the Southern Health Board and operated under the auspices of the Brothers of Charity, a disorder in the autistic spectrum was confirmed.

7 Jerry lives with his parents in Macroom, Co. Cork.

THE PROCEEDINGS

8 The proceedings were initiated by a Plenary Summons which was issued on 15th October 2003 in which the Plaintiff claims various declaratory reliefs in relation to his constitutional, statutory and other legal entitlements to be provided with appropriate free primary education and also appropriate freetherapies and care. He also claims damages for breach of his constitutional rights. Significantly for present purposes he seeks a mandatory injunction pursuant to the Education Act, 1998(the Act of 1998) directing the First Defendant, the Minister for Education and Science, to forthwith provide for free primary education, including support services appropriate, to his needs.

9 On the same day as the summons was issued, that is to say, 15th October 2003, a Notice of Motion claiming various interlocutory reliefs was issued. The Motion came on for hearing on the 20th February, 2004.

10 The issues between the Plaintiff and the third Defendant, Southern Health Board, were resolved by agreement. The issues between the Plaintiffs and the First Defendant were considerably narrowed and they were, in fact, narrowed down to two issues. This judgement is concerned with those issues.

THE EVIDENCE

11 The evidence pertinent to the issues with which the Court is concerned is contained in Affidavits sworn by the Plaintiff's mother, Mrs. Cronin, on the 10th October, 2003; 12th January, 2004; and 27th January, 2004 and in Affidavits setting out the First Defendant's position sworn by a civil servant in this department, Mr. John P. Kelly, on the 12thDecember,2003; 23rd January, 2004; and 12th February, 2004.

12 In the Affidavits there have been exhibited a number of professional assessments of Jerry by educational psychologists, which include expressions of opinion as to the manner in which Jerry's education, training and care should be progressed. I propose summarising the views of the professionals insofar as they are relevant to the issues which arise on this application.

SUMMARY OF PROFESSIONAL OPINIONS

13 Dr. Olive Healy has been involved with Jerry since January, 2003. She is the Director of Education at Cork CABAS School. Jerry has been on the school waiting list since January, 2003. At that time the First Defendant sanctioned ten hours home tuition for Jerry and Dr. Healy, at his mother's request, agreed to supervise a home programme for him.

14 In February, 2003 Dr. Healy assessed Jerry and concluded that, given that he was unlikely to be offered a place in the Cork CABAS school soon, the next best option was for Jerry to access a home based CABAS programme for thirty two hours per week until he should get his school placement. It was Dr. Healy's opinion that Jerry would benefit immensely from the consistent and effective behavior management programme which a CABAS school can offer.

15 In April, 2003 Sally Williams, senior psychologist with the Regional Autism Spectrum Disorder Service, made an application to the First Defendant for an additional ten hours per week home tutoring for Jerry. She expressed the view that, while not ideal, twenty hours per week home tutoring was nearer to meeting Jerry's needs than the then current provision. On foot of this application the First Defendant, in May, 2003, sanctioned a further five hours per week home tutoring forJerry.

16 In May, 2003 Jerry was assessed in London by Mr. Allen Willis, an education and psychology consultant who specialises in autism and communication disorders. He diagnosed Jerry in the moderate range of the autistic spectrum. He summarised his views of Jerry's educational needs, as follows, in his report:

"Jerry has significant and complex educational needs and poor compliance to adult direction. He requires an intensive education programme to meet those needs, that is autism specific and consists of 1:1 direct teaching. Jerry needs to have an intensive and systematic approach such as Applied Behavioral Analysis (ABA) as he is not yet able to imitate other children consistently or learn by a language based instructions in a group or class setting. Jerry needs to establish compliance to adult direction as a priority, so that he is then ready to learn from adults and then from other children. He has responded well to 1:1 teaching at home but the hours areinsufficient at present. Research indicates that a minimum of thirty two hours per week of ABA is needed to be effective and I would recommend that Jerry receive an ABA programme of no less than this amount per week. He is currently on the waiting list for CABAS in Cork and it is my opinion that he should be placed there and receive an interim ABA programme at home for at least thirty two hours per week until such time as he is placed at CABAS."

17 The next milestone was the institution of these proceedings. In November, 2003, the First Defendant sanctioned home tuition for Jerry for twenty hours per week and this provision was backdated to January,2003.

18 In connection with these proceedings Jerry was assessed by Dr. Clare Mangan on behalf of the First Defendant. Dr. Mangan is an educational psychologist. She is the Assistant Senior Education Officer with the Southern Educational and Library Board in Northern Ireland, where she has direct responsibility for children and young people with special education needs, including autism.

19 Having assessed Jerry in his home, Dr. Mangan furnished a comprehensive report to the First Defendant. Dr. Mangan's opinion is that Jerry has learning difficulties that are at least in the mild range of learning disability, bordering on the moderate learning disability range in someareas.

20 She diagnosed Jerry as mildly autistic relative to other children who have been given a diagnosis. She recognised that he had special education needs arising from his learning disability and autism and also because of his significant expressive and receptive language delay and problems with social communication. The pre-school provision she recommended was as follows.

21 On the basis of her assessment she recommended that in the first instance Jerry would benefit from:

22 2 "1. A pre-school placement for at least three days perweek.

23 2. In this context he should access full time assistance for the hours that he attends.

24 3. This assistant and other pre-school staff should require training and support from local autism services to facilitate the delivery of a structural, social, cognitive and language based programme.

25 4. The pre-school placement could be supplemented by a home based programme for part of the week. The home based programme would provide additional support in relation to key targets and assist Jerry's parents with the establishment of targets for...