Costs in education cases a 'scandal'

A High Court judge has expressed concern about "the scandal of extensive protracted and convoluted litigation and legal costs" in cases relating to the educational entitlements of children.

Mr Justice Thomas Smyth made the remarks in a judgment issued this week in which he refused to order the State to discover documents outlining what funding had been provided by the State for education and therapies for autistic twins on whose behalf proceedings were initiated in 2000, alleging they were being denied appropriate education and therapies.

The judge said the courts should only ever "as a necessary last resort" embark on an inquiry into "resources issues" in such cases, including whether a want of resources, if proven, is ever a defence to a breach of a constitutional right to education.

While noting his refusal of discovery in the case was at variance with views expressed by other High Court judges, the judge said he would prefer, if he were wrong, to have his decision reversed by the Supreme Court on appeal as this would clarify the issue.

Clarification was desirable to ensure "the scandal of extensive protracted and convoluted litigation might cease or proceed on settled lines" and so that the resources of the State would be "exclusively applied" to the persons intended to be protected by the Constitution, the legislation and the courts.

The case involves 11-year-old twin girls, Etain and Tara Fitzgerald, who, through their father Michael, of Carriganure, Kilmeaden, Co Waterford, had brought proceedings against the Minister for Education and Science and the State. Both twins were diagnosed autistic in May 1999 and the proceedings were initiated in late 1999.

The court heard the State agreed in February 2000 to establish a special class for children with autism in a national school at Kilmeaden, Co Waterford. Just weeks earlier, a motion for an injunction was brought on behalf of the twins.

Both twins were offered a place in that class in December 2000 and the class was set up. However, the judge said, during the injunction proceedings, an entirely different education provision involving Applied Behaviour Analysis (ABA) was sought for the twins. The twins' parents brought them to California for a year and put them in school there and then returned to Ireland.

The judge said "the clear inference" was that the litigation was continued with a view to coercing the State to alter its position and include ABA provision in the special class.

The twins' claim was later extended to include claims for mandatory orders against the State which led to very extensive amendments in the State's defence, he said.

That defence included pleas that, in carrying out her functions, the Minister for Education "shall have regard to the resources available" and the State indicated it would contend that any court order directing how resources should be allocated would breach the separation of powers doctrine.

At the request of solicitors for the twins, the State later in October 2005 clarified that it would be defending the case on the basis that what was provided was appropriate.

The judge said he could see no real difficulty in the case proceeding to a point where the court could determine if the twins had been given the type of schooling mandated by the Constitution.

The core issue, he said, was whether the twins had received their legal entitlements, not whether the State did or did not apply resources.