Court hears teenager has been out of school for more than a year

Wednesday 06 March 2013 22.50
James McDonagh had appealed against his daughter's exclusion from school under the Education Act
James McDonagh had appealed against his daughter's exclusion from school under the Education Act

A teenage girl with ADHD and other difficulties is seeking court orders compelling the Minister for Education to get her into a school.

Angel McDonagh from Dublin has been out of school for more than a year.

Her counsel Mark de Blacam said the Constitutional right to free primary education is "meaningless" unless the minister acts to find a school for her.

He argued that in "an extreme situation" such as this, the minister must find this child a school place.

The 14-year-old girl has a number of difficulties, including spina bifida, ADHD, conduct and attachment disorders, and an intellectual disability.

She lives at Nutgrove Crescent in Rathfarnham with her father, brother and grandfather.

Since the family came to Dublin from Derry in 2008, they had sought a school place for Angel and one was obtained in 2010 in St Michael's House Grosvenor School.

After about a year there, she was excluded temporarily in December 2011 due to her challenging behaviour and that exclusion was made permanent from February 2012.

She has been out of school since, but received home tuition from April to June 2012. She is also receiving services from the HSE.

The home tuition did not resume again until December 2012 and is continuing on the basis of two hours daily, Mr de Blacam said.

While Angel was coping with that and there was no complaint against her tutor, the case was she "should be at school".

A social worker team leader had exhibited a care plan stating Angel needed a school place with the necessary supports, while a psychologist's report stated she needed to learn how to interact with other children.

Her father James had appealed under the Education Act against her exclusion, but the appeal was rejected, counsel added.

Mr De Blacam said a meeting of the National Education Welfare Board was convened to see if it could get a school.

Two schools were identified, but both said they could not take her and were unable to meet her needs.

The National Council for Special Education, an independent statutory body, also had a role in considering applications from special needs schools for supports.

Although the court action was adjourned seven times since being initiated last November, there was still no school identified for Angel, counsel said.

Mr De Blacam said the position of the minister and State appeared to be they are not required to directly provide education.

He said their function was to ensure educational facilities were available and they had no power to direct schools to take a child unless there was a successful appeal under the Education Act.

His case was the Constitution obliges the State to provide for free primary education and the corollary of that was children have the right to free primary education.

When a child is not getting such education, the court is entitled to make an order compelling the minister to ensure appropriate provision is made, he argued.

Senior counsel for the minister, Conor Dignam, said the plaintiff had not produced expert evidence to prove the interim solution of home tuition was inappropriate.

He said it was clear from the reports that Angel required a range of services, including psychological and psychiatric support.

Even if she were placed in a school tomorrow she would still have the same difficulties in the absence of those additional services.

"The minister has to say how do I deal with this difficult situation and the only way is by providing home tuition until these difficulties are addressed," he said.

Those additional services were not within the minister's area of responsibility or competence, Mr Dignam said.

He told the court there was a much higher threshold for granting a mandatory injunction and the court would have to be satisfied there was a strong and clear case the applicant would succeed at the main trial of the action.

Mr Dignam added that there was no gap in the educational provisions for the girl.

However, counsel for Mr McDonagh said this was not the case. Angel had been out of school since January 2012 and home tuition had only been provided from April to June last year and did not resume until December.

He said two reports had recommended the child be placed in a special school and both said she would benefit from interacting with other children.

"How is she to get this while being home tutored?" he asked. "The question is who is responsible in a case like this where a child has been out of school for over a year. It is our submission that the minister is responsible."

It was not a case that the Minister had no recourse, he said, adding the minister could apply to the court to force the HSE to provide the additional services required.

The case was adjourned to 22 March when a decision may be given.