State's 'tactic' on autism cases criticised

A High Court judge has strongly criticised the State for its "tactic" of defending legal actions taken by parents seeking appropriate education for their autistic children.

The money expended in such cases would be better spent on providing the education, he said.

Mr Justice Kelly said yesterday his experience was that all autism cases eventually settle at the last minute at the door of the court, with the State having ultimately to meet the legal costs of both sides. "I shudder to think of the amount of costs incurred in fighting these cases," he said.

The costs, which legal sources later confirmed have exceeded several million euro to date, would be better spent on suitable provision for autistic children, the judge said, and he hoped the tactic of defending the cases to the bitter end would come to an end. "How much more sensible it would be for the money to go towards the costs of providing the services for the children," he remarked.

The judge was speaking when approving terms of settlement in two actions taken by parents of autistic children.

He noted that, in both cases, the legal actions were initiated in 2000 and had been before the courts since then, with a full defence filed by the State in both cases, in which it denied responsibility for providing special education sought for the children.

The judge said he had begun a practice of listing such cases for mention in an attempt to bring matters to a head and to get the parties together to negotiate terms.

That practice was bearing fruit in that settlements were being reached, and these were removing the additional burden on parents of worrying about legal costs, when they already had much to cope with in seeking appropriate education and therapies for their children.

While outlining the settlements in both cases, Mr Michael Gleeson SC, for the children involved, agreed with the judge's comments and said it was his experience that it took court action to procure the particular provisions sought.

He also noted that while the State had now, in both cases, made money available for particular therapies for the children, a shortage of speech and language and occupational therapists meant parents often could not procure those services, even on a private basis.

In the first case, that of Finan Malone (5), his mother, Ms Roisin Malone, said she and her husband had remortgaged their home near Newbridge, Co Kildare, to set up a school for Finan and other autistic children in their home.

For a six-month period, 16 adults and 12 autistic children used four rooms of the house as a school. The school had since been relocated and was funded by the State.

Ms Malone told the judge she and her husband had spent some €60,000 on providing the school facility in their home. They had received €20,000 from the local authority towards the cost, while the settlement of their case amounted to €30,000. Their outlays amounted to more than the settlement but she was willing to accept that. She was very happy with her son's progress in the school, and it was hoped he would progress to full mainstream schooling.

Mr Gerry Moynihan, the father of the second child, Kevin, now aged 11, said his son was "like a human football" between the Southern Health Board and the Department of Education.

His son was in a mainstream national school at Belgooly, Co Cork, because there was no special facility in their area, and school had made every effort to assist him.

After the legal proceedings were initiated, Kevin had secured five hours a day from a resource teacher (where previously he had had 2½ hours a week) and also had the services of a full-time special needs assistant.

Mr Moynihan said he was aware much had been done for his son, but it was still inadequate because his child needed so much more. He added: "We've never given up on Kevin but we've come to the stage where we just have to accept what is offered. The services are just not there."

Mr Justice Kelly paid tribute to the efforts of the parents on behalf of their children and said it was clear the Malones and the Moynihans had made very considerable sacrifices for their children.

The settlements were not ideal but were perhaps the best that could be done in the circumstances.