DPP v Best

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 1998
• Neutral Citation: [1998] IEHC 132
• Docket Number: 519 SS/1998
• Court: High Court
• Date: 31 July 1998

[1998] IEHC 132

THE HIGH COURT

519 SS/1998

DPP v. BEST

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

CHRISTINE BEST

RESPONDENT

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

SCHOOL ATTENDANCE ACT 1926 S17

SCHOOL ATTENDANCE ACT 1926 S4

CONSTITUTION ART 42

CONSTITUTION ART 42.2

SCHOOL ATTENDANCE ACT 1926 S4(2)

SCHOOL ATTENDANCE ACT 1926 S18

CONSTITUTION ART 42.3.2

CARBERRY V YATES 1935 69 ILTR 86

OSBOROUGH "EDUCATION IN THE IRISH LAW & CONSTITUTION" 1978 IJ NS 145

CONSTITUTION ART 26

Synopsis

- [2000] 2 IR 17 - [1998] 2 ILRM 549

Parents enjoy a prima facie constitutional right to educate their children at home provided that such children receive a certain minimum education, moral, intellectual and social. In a prosecution under the School Attendance Act 1926 a parent can establish a defence that suitable elementary education is being provided for the children other than in a national or other suitable school. While the constitutional phrase a "certain minimum education" has not been legislatively defined, on the facts of this case, where the respondent was doing her best to educate her children in the basic essential subjects taking into account the moral, social and intellectual aspects of education, the District Judge would not be entitled to form the view that such a suitable elementary education was not being provided. The High Court so held in answering the case stated.

1 Judgment of Mr. Justice Geoghegandelivered the 31st day of July, 1998.

2 This is a consultative case stated by Judge Mary O'Halloran, a Judge of the District Court sitting in Listowel, seeking pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961the determination of a question arising in a prosecution under the School Attendance Act, 1926as amended.

3 The offence with which the Respondent had been charged was an offence under Section 17 of the School Attendance Act, 1926.The parts of that section relevant to this case read asfollows:-

4 2 "17. - (1) Whenever a parent fails or neglects to cause his child to whom this Act applies to attend school in accordance with this Act and, so far as is known to the enforcing authority of the school attendance area in which the child resides there is no reasonable excuse for such failure or neglect, such enforcing authority shall serve on such parent a warning in the prescribed form -

5 (a) requiring him within one week after such service either to cause his child named in the warning to attend school in accordance with this Act or to give to the enforcing authority a reasonable excuse for not sodoing;

6 (b) informing him that in the event of his failing to comply with the warning proceedings will be instituted against him under this Act in the District Court; and

7 (c) informing him that if within three months after such proceedings he again fails to comply with this Act further proceedings may be instituted against him without previous warning.

8 (2) If a parent does not comply with a warning duly served on him under this section, he shall, unless he satisfies the Court that he has used all reasonable efforts to cause the child to attend school in accordance with this Act, be guilty of an offence under thissection...."

9 In plain language, the effect of the above is that if a parent within one week after the service of the warning notice gives the gardai a reasonable excuse for not sending the child to school such parent commits no offence. The expression "reasonable excuse" is not defined for the specific purpose of Section 17 but Section 4 of the Act which creates the obligation on a parent of every child to whom the Act applies to cause such child to attend a national or other suitable school "unless there is a reasonable excuse for not so doing" contains four instances of "reasonable excuse" for the purposes of that section. The only one of them relevant to this case is "that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school". Essentially, the defence in this prosecution is that the Respondent is educating her children at home and has a constitutional right so to do. The material parts of the Case Stated read asfollows:-

10 2 "2. At the hearing of the said complaint it was proved that the said children. William and Niall Best, did not attend at the school on the pertinent dates as grounded in the prosecution.

11 3. It was contended for the Accused on aforesaid date that the children, William and Niall Best, were being educated at home by her and she outlined the content of the said education to the Court. She indicated that she would welcome an assessment of the children's educational position. The case was adjourned to enable said assessment to be undertaken which assessment was before the Court on the 27th January, 1998.

12 4. On the 27th January, 1998 Dr. Padraigh Ó Donnabhain, District Inspector, Department of Education and Science, the author of the assessment report, gave evidence in line with the said report, copy annexed hereto.

13 5. On the evidence as tendered I found as a matter of fact that the children. William and Niall Best, were not in receipt of suitable elementary education of general application viz-á-viz (sic) the primary school curriculum of this State.

14 6. I reserved my decision on the said complaint pending the determination of this case stated. The opinion of the High Court is respectfully sought on the following question:-

15 "Whether in view of my findings of fact I am prevented in law from pronouncing a formal order of conviction in view of the fact that:-

16 (a) the Oireachtas has not to date defined in legislation what constitutes a suitable elementary education as per Section 4(2)(b) School Attendance Act, 1926; and

17 (b) in view of the relevant provisions of Article 42 of Bunreacht na hEireann as follows:-

18 Article 42:

19 1. The state acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of the parents to provide, according to their means of the religious and moral, intellectual, physical and social education of their children.

20 2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by theState.

21 3.

22 (i) The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State.

23 (ii) The State shall however as guardian of the common good require in view of actual conditions that the children receive a certain minimum education moral intellectual and social.""

24 Although it is not referred to in the case stated, it was agreed at the hearing that a purported excuse for not sending the children to school was given to the guards within the seven days from the service of the warning notice. The warning notice was apparently served on the 21st February, 1997 and a letter dated the 26th February, 1996, but presumably intended to be 26th February, 1997, was written to Sergeant Sullivan of the Garda Siochana in the following terms:-

"With reference to the warning given to us last Friday we would like to give the following reasons for not sending our children toschool."

25 For a number of years and for a number of reasons we were unhappy with the children attending Dromelough N.S. We were dissatisfied with the school's attitude to parentalinvolvement in the running of the school and became increasingly concerned when our youngest child, Hazel, began to fall behind and lost all interest in her lessons (we put this down to the large class number). We became even more concerned when our second child William, who had regularly been subjected to bouts of bullying, began to show severe stress symptoms.

26 We contacted John and Theresa Murphy from Claghan, Ballyard, Tralee. They publish a regular network/newsletter for hundreds of home educating families in Ireland. They informed us of the following legislation.

(1) Article 42 of the Constitution.

27 Paragraph 2. Parents shall be free to provide this education in their homes (my italics) or in private schools or in schools recognised or established by the State.

(2) School Attendance Act, 1926.

28 Paragraph 4, Sub-section (2) gives as a "reasonable excuse" for failure to send a child to school:-

29 (b) that their child is receiving suitable elementary education in some manner other than by attending a national or other suitable school.

30 We made the decision then to take on the responsibility of our children's education and started to teach them at home. We subsequently wrote to the Principal of Dromclough N.S. informing him of this decision. This was in November 1996. We then wrote to the Department of Education in January 1997 (we enclose a copy of the letter).

31 We believe that we are complying with the School Attendance Act as we are providing our children with a good education which would compare favourably with that which they were receiving at Dromclough N.S. or would receive at any other national school.

32 Each morning (weekdays) we have "lessons". These include maths and English on a daily basis, history, geography, nature, arts/crafts once or twice a week and cooking, needlework, woodwork on an irregular basis. We hope to include Irish in their curriculum if we can arrange it and also some metal work. Each week we go swimming and visit the library where they often work on projects. We took them along to the children's drama group in Listowel and Hazel is taking ballet lessons again in Listowel.

33 Together with any informal learning they receive through being with us all day we feel that they are getting a broad spectrum of...