The High Court has granted a mandatory order directing the Minister for Education to provide "forthwith" for free and appropriate primary education for an eight-year-old autistic boy who has been unable to find a school place for over a year.
Granting the order to Jason Nagle, of Clondalkin, Dublin, Mr Justice Herbert said despite a series of "ever-more urgent advices, warnings and pleas for action", the response of the Department of Education to the boy's plight was likely, in the judge's view, to be held to have fallen "far short" of a proper or adequate vindication of his constitutional rights.
He said he found it impossible to accept the Department's assertion that all efforts had and were continuing to be made for the boy.
It seemed "little or nothing has been done or is being done" to vindicate his rights.
Since May 2000 the boy had not received the education which all experts, including experts for the Department, had agreed he should have, the judge noted.
It was not until the end of last April that he had received a home tutor, funded by the Department. Experts all agreed home tuition would not meet his long-term needs and he required school-based education.
It may or may not be a coincidence that home tuition was provided after several legal applications for injunctions, the judge added.
The mandatory order applies pending the determination of proceedings taken by the boy, suing through his mother, Ms Margaret Nagle, against the Ministers for Education and Science and Health and Children, the South Western Area Health Board, the State and the board of management of Our Lady's Boys National School, Ballinteer, Co Dublin.
In his reserved judgment, Mr Justice Herbert said in light of several legal decisions, including that of the Supreme Court in the action taken by an autistic man, Mr Jamie Sinnott, there was "a real likelihood" at the hearing of the full action that Jason Nagle would be granted a mandatory injunction or a declaration that the Minister for Education had failed to fulfil his statutory obligation to provide for free and appropriate primary education for him.
The court had jurisdiction to grant a mandatory order "wherever it is just and convenient to do so".
In his view, there would be a much greater risk of serious injustice being done were the court to refuse the order now.
He added he did not believe the boy had a real likelihood of establishing his case against the other parties.
Earlier, the judge noted the boy was assessed at age four as requiring an education environment specialising in meeting the needs of a child whose learning potential was impeded by his autism.
The boy was diagnosed as having a moderate mental handicap with autistic features.
He attended a special pre-school and in October 1999, became a pupil at the Ballinteer school, where he attended an outreach class for autistic children.
He was said to have made satisfactory progress there but in May 2000, he suffered a prolonged and severe seizure while playing in the school playground.
In September 2000, the school board decided Jason Nagle could not re-enrol.
It had particular concerns that he needed to be administered certain medication and that staff were unqualified to perform this task. The school later stipulated that a number of measures would have to be put in place for him.
The judge said offers from the Department of Education fell far short of what the school required.
When the case was mentioned yesterday for clarification of the order, Mr Justice Herbert granted a formal mandatory order directing the Minister to provide forthwith for free primary education outside the home, together with appropriate statutory support services outside the home for the boy according to his needs.
