In the matter of the Courts (Supplemental Provisions) Act 1961

Director of Public Prosecutions (prosecutor) v Chris- tine Best (respondent).

Constitution - Consultative case stated - Respondent prosecuted for failing to cause her children to attend school - Burden of proof - Whether respondent had reason- able excuse of providing suitable alternative elementary education - Whether parents have a right to educate children at home - Whether education at home meets minimum constitutional standard - Constitution of Ireland 1937, article 42 - School Attendance Act 1926 (No 17) sections 4, 17 and 18.

The High Court (before Mr Justice Geoghegan); judgment delivered 31 July 1998.

Parents enjoy a prima facie constitutional right to educate their children at home provided that such children receive a certain minimum education, moral, intellectual and social. In a prosecution under the School Attendance Act 1926 a parent can establish a defence that suitable elementary education is being provided for the children other than in a national or other suitable school. While the constitutional phrase "a certain minimum education" has not been legislatively defined, on the facts of this case, where the respondent was doing her best to educate her children in the basic essential subjects taking into account the moral, social and intellectual aspects of education, the District Court judge would not be entitled to form the view beyond reasonable doubt that such a suitable elementary education was not being provided having regard to the provisions of Article 42 of the Constitution. The High Court so held in answering a case stated from the District Court.

Maurice Gaffney SC and Feichin McDonagh BL for the prosecutor; Paul Sreenan SC and Sinead Ni Chulachain BL for the respondent.

Mr Justice Geoghegan said that this case came before the court by way of case stated from the District Court where the respondent was charged, under section 17 of the School Attendance Act 1926, with failing to cause her children to attend school without reasonable excuse. Section 4 of the 1926 Act enumerates four instances of reasonable excuse which constitute a defence to the charge. The only one relevant to this case is "that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school."

The fact that the respondent's children were not attending school was established to the satisfaction of the District Court and the respondent argued that she was educating her children at home and had a constitutional right to do so. The District Court judge stated a case for the opinion of the High Court as to whether he could proceed to conviction in the light of the provisions of article 42 of the Constitution of Ireland 1937 and the fact that the legislature had not defined in legislation what constitutes suitable elementary education.

Mr Justice Geoghegan said that under section 18 of the 1926 Act the burden of proving the existence of a reasonable excuse for the non-attendance of a child at school and that the child is receiving suitable elementary education in some manner other than by attendance at a national or other suitable school rests on the person charged.

In this case the respondent certainly gave detailed particulars of the education she and her husband were providing for their children at home, which included daily lessons in maths and English with instruction in other subjects throughout the week. In addition French lessons were provided once a week by a trained primary school teacher, although no lessons in Irish were provided. The respondent argued that this constituted suitable elementary education for the purposes of the 1926 Act.

However, evidence was also given by a district inspector of the Department of Education in relation to the quality of education being provided by the respondent. He produced a report which stated that while the efforts of the respondent were a well intentioned effort to follow the primary school curriculum the education being provided had serious shortcomings in relation to structure, planning and direction. The report concluded that the children were likely to be significantly disadvantaged in their ability to avail of further education at second or third level if they continued to be educated at home.

Article 42 of the Constitution deals with the education of children and article 42.2 provides that parents "shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State." However, article 42.3.2 further provides: "The State shall, however, as guardian of the common good require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

While what constitutes a certain minimum education for the purposes of article 42.3.2 is not clear it is not a static concept and can vary according to public expectations. Certainly what constitutes a minimum education, which must necessarily be provided under the Constitution, must also be regarded as "a suitable elementary education" for the purposes of the 1926 Act.

Mr Justice Geoghegan referred to the Supreme Court decision in the case of In Re Article 26 of the Constitution and the School Atten- dance Bill 1942 [1943] IR 334 where the then Chief Justice Mr Justice O'Sullivan recognised the prima facie right of parents to provide for the education of their children, subject to the right of the State to interfere to the limited extent provided by Article 42.

While the legislature is entitled to define what is meant by "a certain minimum education" it has not done so and therefore a District Court judge should be slow to proceed to a conviction under the 1926 Act where he has heard evidence of a parent doing her best to educate a child in basic essential subjects taking into account the moral, social and intellectual aspects of education. Certainly in the absence of statutory formulation the District Court should not involve itself in examining the finer details of teaching methods as this would lead to uncertainty and a failure to vindicate a parent's constitutional right to educate her children at home.

In the instant case the District Court judge would not be entitled on the evidence before him, and having regard to article 42 of the Constitution, to conclude beyond a reasonable doubt that a suitable elementary education was not being provided.

Mr Justice Geoghegan was further of the view that instruction in the Irish language was not necessary to comply with the constitutional minimum and in that regard followed the Circuit Court case of Carberry v Yates [1935] 69 ILTR 86.

Solicitors: Chief State Solicitor for the prosecutor; Lees (Listowel) for the respondent.