Parents who choose to educate their children at home are obliged to satisfy the State that they are providing "suitable elementary education", the State argued before the Supreme Court yesterday.
The five-judge court reserved judgment on an appeal by the DPP against a High Court decision that, in the absence of a legislative definition of the State's constitutional obligation to ensure that children receive a certain minimum education, the courts should be very slow - provided certain conditions were fulfilled - to convict a mother educating her three children at home under the School Attendance Act.
Mr Justice Geoghegan delivered judgment last July on a case stated to the High Court by District Judge Mary O'Halloran, sitting at Listowel District Court.
The case stated related to Mrs Christine Best, Stacks Mountain, Kilflynn, Co Kerry, who was charged under the 1926 School Attendance Act with keeping her children out of Dromclough National School between December 1996 and June 1997. Mrs Best said she was educating her children at home and had a constitutional right to do so.
The district judge found that two of the Best children, Niall (then aged 12) and William (then aged 10), were not receiving suitable elementary education in the context of the State's primary school curriculum.
In his decision, Mr Justice Geoghegan said there was no legislative or formal definition of the "certain minimum education" which Article 42 of the Constitution required the State, as guardian of the common good, to ensure that children received.
Because of the absence of such a definition, he believed that a district judge trying a charge under the School Attendance Act, on hearing evidence that a parent was doing his or her best to educate the child at home in the basic essential subjects, and taking into account the moral and social aspects of the education as well as the intellectual, should be "very slow" to convict a parent under the Act.
Mr Justice Geoghegan said it would also be wrong, given the absence of definition, for the district judge to go into fine details of teaching methods.
Yesterday Mr Maurice Gaffney SC, for the DPP, argued that the Supreme Court should send the case back to the district judge and direct her to find on the facts whether the education being offered to the Best children amounted to "suitable elementary education" within the meaning of the 1926 Act.
If the district judge found the education being provided did not fit this description, then she should convict Mrs Best, counsel said. He submitted that the burden was on parents educating their children at home to satisfy the State that such children were in receipt of suitable elementary education.
Mr Paul Sreenan SC, for Mrs Best, said she had decided to take her children out of the local school because they were not thriving there and proceeded to educate them at home to the best of her ability.
If parents who wished to educate at home could not deliver "certain minimum education" to their children as stipulated in the Constitution, then they could not insist on home education, counsel said. But as long as the parents did provide this "minimum", they should not be criminalised.
Standards must not be set so high that they eroded the important constitutional right of parents to educate their children at home. This was a right that simply could not be confined to the well-off.