SOC v Minister for Education and Science and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 16 May 2007
• Neutral Citation: [2007] IEHC 170
• Court: High Court
• Date: 16 May 2007

OC (S) v MIN FOR EDUCATION & ORS

BETWEEN:

SOC (a minor suing by his father and next friend, COC)

Plaintiff

AND

The Minister for Education and Science, the Minister for Health and Children, The Health Service Executive, Ireland and the Attorney General

Defendants

[2007] IEHC 170

Record Number: No. 18520P/2004

THE HIGH COURT

Abstract:

Constitution - Education - Health care services - Negligence - Alleged breach of statutory duty - Declarations sought - Mandatory injunctions - Child with autism - Damages - Future education - Constitution of Ireland, 1937 Arts 40, 41, 42 - Education Act, 1998, ss 6 & 7 - Child Care Act, 1991s. 3 - Equal Status Act, 2000 - Health Act 1970 ss. 51, 52, 53, 56, 60 - European Convention on Human Rights Act, 2003 s.3

The plaintiff, a minor was born in June 2002 and in autumn 2002 was diagnosed as having autism. In September 2006 he was due to enter primary education. An issue before the court was what education appropriate to his diagnosis would the Department of Education provide for S. Detailed evidence was given on such education options. Declarations were sought as to the breach by the defendant of his constitutional rights to appropriate education and health care services and statutory rights 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 sought damages for breaches of rights, negligence and breach of statutory duty.

Held by Peart J in refusing the reliefs sought:

The standard of proof that the plaintiff must discharge of whether the Department of Education fell short of providing the appropriate education for S, is on the balance of probability.

The Minister for Education did not fail to provide for education for S. The Minister is obliged under the Constitution to 'provide for education' not to 'provide education'. As long as provision is made by the Minister for 'appropriate education' the constitutional duty is discharged.

The burden of proof was not discharged by the plaintiff to show that the eclectic provision and in particular that described as Model A, is not an appropriate autism-specific provision.

General damages for the loss of 12 months in the provision of appropriate interventions, the impact of that on the rate of S's developmental progress at a critical time and on his behaviours at Eur50,000.

Award for exemplary or punitive damages refused.

Special damages awarded in a number of categories amounting to Eur10,686.

Reporter: BD

EDUCATION ACT 1998

CHILD CARE ACT 1991

EQUAL STATUS ACT 2000

HEALTH ACT 1970

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

LEITER LEITER INTERNATIONAL PERFORMANCE SCALE (LIPS), REVISED 1979

GRIFFITHS SCALES OF MENTAL DEVELOPMENT 2004

DUNN, DUNN, WHETTON & BURLEY BRITISH PICTURE VOCABULARY SCALE 2ED (BPVS II)

LOWE & COSTELLO SYMBOLIC PLAY TEST

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

SCHOPLER, MESIBOV & BAKER EVALUATION OF TREATMENT FOR AUTISTIC CHILDREN & THEIR PARENTS 1982 JOURNAL OF THE AMERICAN ACADEMY OF CHILD PSYCHIATRY 21 262

OZONOFF & CATHCART EFFECTIVENESS OF A HOME PROGRAMINTERVENTION FOR YOUNG CHILDREN WITH AUTISM JOURNAL OF AUTISM AND DEVELOPMENTAL DISORDERS 1998 28(1) 25

LORD & SCHOPLER THE ROLE OF AGE AT ASSESSMENT, DEVELOPMENTAL LEVEL & TEST IN THE STABILITY OF INTELLIGENCE SCORES IN YOUNG AUTISTIC CHILDREN 1989 JOURNAL OF AUTISM & DEVELOPMENTAL DISORDERS 19(4) 483

HARRIS, WOLCHIK & MILCH CHANGING THE SPEECH OF CHILDREN WITH AUTISM & THEIR PARENTS CHILD & FAMILY BEHAVIOR THERAPY 4 151

CARR THE HANDBOOK OF CHILD & ADOLESCENT CLINICAL PSYCHOLOGY: A CONTEXTUAL APPROACH 2006

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 42.1

CONSTITUTION ART 42.2

CONSTITUTION ART 42.3.1

CONSTITUTION ART 42.3.1

CONSTITUTION ART 42.4

CONSTITUTION ART 42.5

HEALTH ACT 1970 S51

HEALTH ACT 1970 S52

HEALTH ACT 1970 S53

HEALTH ACT 1970 S56

HEALTH ACT 1970 S60

CHILD CARE ACT 1991 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 2

GLENCAR EXPLORATION PLC v MAYO CO COUNCIL 2002 1 IR 85 2002 1 ILRM 481

EDUCATIONAL PROVISION & SUPPORT FOR PERSONS WITH AUTISTIC SPECTRUM DISORDERS: THE REPORT OF THE TASK FORCE ON AUTISM 2001

EDUCATIONAL PROVISION & SUPPORT FOR PERSONS WITH AUTISTIC SPECTRUM DISORDERS: THE REPORT OF THE TASK FORCE ON AUTISM 2001 151

EDUCATIONAL PROVISION & SUPPORT FOR PERSONS WITH AUTISTIC SPECTRUM DISORDERS: THE REPORT OF THE TASK FORCE ON AUTISM 2001 161 PARA 8.5

1 Mr Justice Michael Peartdelivered on the 16th day of May 2007:

2 S is a young boy born on the 12 ^th 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.

3 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.

4 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.

5 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 theEducation Act, 1998 are incompatible with the defendants' obligations under the European Convention on Human Rights.

6 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 19 ^th May 2006.

7 A Statement of Claim was first delivered by the plaintiff on the 3 ^rd September 2004. However, an Amended Statement of Claim was delivered on the 22 ^nd April 2005, and a further Amended Statement of Claim as delivered during the course of this hearing, with leave of the Court, on the 19 ^th 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 16 ^th 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 22 ^nd 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.

8 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.

9 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 betweenthe 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...