(1) The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

(2) Parents shall be free to provide this education in their homes or in private schools recognised or established by the State.

(3)

(i) The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

(ii) 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.

(4) The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious or moral formation.

(5) In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

CASE LAW INVOLVING THE INTERPRETATION OF THE CONSTITUTIONAL PROVISIONS REGARDING EDUCATION AT HOME

Article 42.1 and 42.2 recognise that parents have an inalienable right and duty to provide for the religious and moral, intellectual, physical and social education of their children and that they shall be free to provide this education 'in their homes or in private schools or in schools recognised or established by the State'. In 1942 the Oireachtas passed the School Attendance Bill, 1942 which attempted to supplement the earlier School Attendance Bill 1926. The Bill was referred to the Supreme Court which ruled that it was repugnant to the provisions of the Constitution.

Re Article 26 and the School Attendance Bill, 1942 (3) [1943] I.R. 334 Section 4(1) of the Bill would have ensured that children between the ages of six and fourteen would be deemed not to be receiving a suitable minimum education other than by attending school 'unless such education and the manner in which such child is receiving it, have been certified by the Minister to be suitable'.

An unsuccessful attempt was made in this case to define what is meant by 'certain minimum education' in School Attendance Bill case where the Supreme Court ruled that 'a certain minimum education' indicated a 'minimum standard of elementary education of general application'.

The Supreme Court relied on the provisions of Article 42 of the Constitution for the purposes of declaring part of that Bill repugnant to the Constitution.

The former Chief Justice O'Sullivan observed in his judgment as follows:

"It must, however, have been and was clearly contemplated that some parents would or might fail to discharge their duty and for the purpose of providing for this eventuality, clause 3.2 was inserted. It provides that the State shall, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. What is the meaning and extent of this provision? What is referred to as 'certain minimum education' has not been defined by the Constitution and accordingly, we are of the opinion that the State, acting in its legislative capacity through the Oireachtas, has power to define it. It should in our opinion be defined in such a way as to effectuate the general provisions of the clause without contravening any of the other provisions of the Constitution."

The Court found section 4 to be unconstitutional on several grounds, among them that a Minister, even if acting on a reasonable construction of the section might:

'require a higher standard of education than could properly be prescribed as a minimum standard under Article 42.3.2. ... We are further of the opinion that the standard contemplated by the section might vary from child to child, and accordingly. that it is not such a standard of general application as the Constitution contemplates.'

D.P.P. v. Best (4) [1998] 2 ILRM 549 Ms. Best was charged with an offence under s. 17 of the School Attendance Act, 1926 arising out of her failure to send her children to school. S. 4(2)(b) of the Act of 1926 provides that a person charged with an offence under s. 17 may have a reasonable excuse for failing to send their children to school if 'their child is receiving suitable elementary education in some manner other than by attending a national or other suitable school'. S. 18 of the 1926 Act shows that the burden of showing that a child is in receipt of a suitable elementary education rests with the person charged with the offence. At the hearing in the District Court, Ms. Best informed the Court that her children were being educated at home. She also indicated that she welcomed an assessment of her children's educational provision. An inspector appointed by the Department of Education reported that the education being received by the children had serious shortcomings and did not amount to suitable elementary education vis a vis the primary school curriculum obtaining in the State.

A case was stated to the High Court and came on for hearing before Mr. Justice Geoghegan who found that the rights of the parents to educate their children in their homes in the Constitution is subject only to the restriction contained in Article 42.3.2 that children must receive 'a certain minimum education'. Given that there is no legislative or other formal definition of what constitutes a 'certain minimum education' for the purposes of Article 42, a District Court judge should be very slow to find a parent guilty as a matter of fact of an offence under the 1926 Act. Mr. Justice Geoghegan was of the view that what might be considered suitable elementary education at one point in time might vary and that in the absence of a definition it would be wrong of the District Judge to go into the fine details of teaching methods. He found that there could be no vindication of the prima facie constitutional right of the parent to educate his or her children at home if there is gross uncertainty.

An appeal against the decision of Mr. Justice Geoghegan has been heard by the Supreme Court and judgment is awaited. The outcome of this appeal will have clear significance as to the interpretation of Article 42 of the Constitution and the right of parents to educate in the home.

PROPOSED LEGISLATION AND THE LEGAL POSITION OF THE HOME EDUCATOR

The State carries out its obligation under Article 42.3.2 of the Constitution by requiring school attendance under the School Attendance Acts or requiring parents to prove that their child is receiving a suitable elementary education in some other manner. Under the School Attendance Acts a child must attend school between the ages of 6 and 15 years of age. Section 4 of the School Attendance Act, 1926 provides that the parent of every child shall, unless there is reasonable excuse for not so doing, cause the child to attend a national or other suitable school on every day on which such school is open for secular instruction.

Section 4(2) of the School Attendance Act, 1926 states that:

"any of the following shall be a reasonable excuse for failure to comply with this section, that is to say:

(a) that the child has been prevented from attending school by the sickness of the child,

(b) that the child is receiving suitable elementary education in some manner other than by attending a national or other suitable school (5) This provision was to take account of parents' rights under Article 42.2 to provide education themselves

(c) that there is not a national or other suitable school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds, to send the child;

(d) that the child has been prevented from attending school by some other sufficient cause".

The reasonable excuse that the child is receiving suitable education at home under section 4(2) of the Act covers situations where a child is being educated by his or her parents, or a private teacher.

• the entitlement of every child in the State to a certain minimum education, and for that purpose,
• to provide for the registration of children receiving education in places other than recognised schools,
• the compulsory attendance of certain children at recognised schools,
• the establishment of the National Educational Welfare Board (s. 9-13),
• the co-ordination of its activities and those of certain other persons in so far as they relate to matters concerned with school attendance,
• the identification of the causes of truancy on the part of certain children,
• the adoption of measures for the prevention of truancy, to repeal the School Attendance Acts, 1926-1967 (s.8),
• to permit the supply of data relating to a person's educational history to certain persons,
• to provide for the amendment of the Protection of Young Persons (Employment) Act, 1996

National Educational Welfare Board

Section 9 of the Bill provides for the establishment of a body to be known as the National Educational Welfare Board. The functions of the Board are set out at section 10 of the Act. Its principal function is to ensure that each child attends a recognised school or otherwise receives a prescribed minimum education and to assist in the formulation and implementation of policies and objectives of the Government for the time being concerning the education of children. In this regard the Board is given certain tasks under the Act to include:

• the promotion and fostering in society, and in particular in families, an appreciation of the benefits to be derived from education, in particular as respects the physical, intellectual, emotional, social and moral development of children, and the social and economic advantages that flow therefrom,
• the promotion and fostering, in recognised schools, an environment that encourages children to attend school and participate fully in the life of the school,
• the carrying out of research into the reasons for truancy on the part of students and into strategies and programmes designed to prevent it,
• the dissemination to recognised schools of the findings of research conducted'
• the assistance of recognised schools in so far as practicable to meet their obligations under this act.
• the assistance of parents and children who exhibit problems related to attendance at school,
• the monitoring and assessment of the effectiveness of strategies and programmes aimed at preventing truancy in recognised schools etc.

The Board has power under the Act, with the consent of the parent of the child concerned, to arrange for a child to be examined as to his or her intellectual, emotional and physical development.

Where a parent refuses to give his or her consent the Board may apply to the Circuit Court for an order that an examination of the child be carried out. The Board must satisfy the Court that the child's behaviour, his or her lack of education progress or the regularity with which he or she is absent from school without reasonable excuse is such that in all the circumstances the carrying out of an examination is warranted.

Education Welfare and Compulsory School Attendance

The Minister has power under section 14 of the Bill to prescribe a minimum education to be provided to each child who is being educates in a place other than a recognised school (in conjunction with the National Council for Curriculum and Assessment). The Minister may by regulation prescribe different minimum standards of education in respect of children of different ages or of different capacities.

Register of Children Receiving Education in a Place other than a School

Section 15 of the Bill provides for the establishment of a Register of all children in receipt of education in a place other than a recognised school and where a person chooses to educate, or have educated, his or her child in a place other than a recognised school he or she must apply to the Board to have the child registered in the register. Where a child has been educated in a place other than a recognised school prior to the enactment of the Bill, then there is an obligation to apply to register that child within 3 months of the commencement of the Act.

How to Register

An application under section 15 must be in writing, specify the times and place at which the child receives the education to which the application relates and should be in any form prescribed by the Minister.

Determination of Whether the Child is in receipt of a Prescribed Minimum Education

As soon as possible after the receipt of the application for registration, the Board shall cause an authorised person under the proposed legislation to enter the place at which the child is being educated and to observe the child receiving such instruction as forms part of the education being provided to him or her. The authorised person shall inspect such premises, equipment, and materials as are used in the provision of education to the child concerned, and carry out an assessment of the child concerned as to his or her intellectual, emotional and physical development, which shall include an assessment of his or her knowledge of such subjects, and proficiency in such exercises and disciplines, as the authorised person considers appropriate.

A report is made to the Board and if the Board is satisfied on foot of the Report that the school is providing the prescribed minimum education, it may register the School. The Board serves a copy of any report received of a school on the parents of the child and they are given an opportunity to make representations. Where the Board is not satisfied that a child is receiving a prescribed minimum education it may register the child subject to the parents' undertaking (in writing) to comply with such requirements as the Board directs or it may refuse to register the child. Assessment of the level of education provided is ongoing and the Board may remove a child's name from the Register if it is not satisfied that prescribed minimum education is being provided or that the parents are failing to comply with an undertaking given. Where parents refuse to allow their children to be assessed, the Board shall refuse to register a child.

Right of Appeal against Determination of the Board

Section 16 of the Act provides for a right of appeal to the Minister within 21 days of notification of a decision of the Board. Within 14 days of receipt of the Notice the Minister must appoint a Committee to hear and determine an appeal under the section. The Appeal Committee is made up of a District Court judge and an inspector or such other person appointed by the Minister. The Parents of the child concerned and the person who carried out the assessment are invited to make submissions. It is not clear whether these submissions will be oral or in writing. The Appeal Committee may affirm the decision of the Board, it may require the Board to register the child or it may require the Board to register the child on the undertaking of the parents of the child to comply with such requirements as the appeal committee consider appropriate.

What children are not required to attend a recognised school under the Bill?

Section 17 of the Bill specifies that a child shall not be required to attend a registered school where:

• he or she is registered in the register maintained under section 15.
• an application under that section in respect of the child has been served on the Board but the Board has not made a decision or a notice of appeal has been served but no decision has been made by the Appeal Committee.
• the 3 month period of grace from the commencement of the Act has not expired,
• the child is temporarily attending a school outside the State and the parent of the child has notified the school at which the child is registered of the reason for his or her non-attendance.
• the child is being educated outside the State,
• the child is participating in a programme of education, work experience, training or instruction prescribed by the Minister;
• there exists some other sufficient cause for his or her not so attending.

Liability for failure to comply with a school attendance notice

Section 26 of the Act provides that where the Board is of the opinion that a parent is failing or neglecting to cause his or her child to attend a registered school in accordance with this Act, the Board shall serve a School Attendance Notice on such parent. The School Attendance Notice requires the parents of a child to cause his child to attend at a specified recognised school on each school day for the duration of the notice. The Notice should also inform parents that failure to comply with the terms of the Notice is an offence. The penalty for an offence under the proposed legislation is:

• a fine of £500.00
• imprisonment for a period of one month,
• a fine and imprisonment.

Defence to prosecution

It is specified in the legislation that it shall be a defence to the proceedings to show that all reasonable efforts have been made to cause the child to attend at a recognised school.

COMPATIBILITY OF PROPOSED LEGISLATION WITH THE PROVISIONS OF THE CONSTITUTION

The challenge to the 1942 School Attendance Bill was made at a time prior to the full development of the doctrine of the presumption of constitutionality whereby it is presumed that all adjudications, discretions etc. conferred by an Act of the Oireachtas will be exercised in a constitutional fashion. It must be suggested that there is at least a possibility that the Supreme Court would not find the Education (Welfare) Bill, 199 unconstitutional for failure to specify the minimum standard required in accordance with the Constitution as the legislation will benefit from the presumption that the power to specify minimum standards will be exercised in a constitutional manner.

There are a number of issues of constitutional concern arising in respect of the Bill, principally whether it vindicates the rights of parents to educate their children according to their means and secondly, whether it is unconstitutional because it vests in the Minister a power to prescribe by regulation what is meant by minimum standards of education in circumstances where there is no guidance in the legislation or in the Constitution as to how these minimum standards are to be assessed. Furthermore, the proposed legislation gives wide ranging powers of inspection and assessment not only of standards of education but also of the means and manner of education, although this power of inspection is said to be for the purposes of determining whether a minimum standard of education is being received. Arguably, this goes beyond the restriction on the rights of parents which is limited to ensuring that children receive a 'minimum standard of education', although it is open to the courts to decide that as assessment of means and manner of education may be relevant to a consideration of whether minimum standards of education are available to the child and may accordingly, come within the scope of what was envisaged by Article 42.3 of the Constitution. Unlike the position regarding the 1942 Bill, the 1999 Bill does not propose to certify the manner of education in its own right.

There is no attempt given to define what is meant by the expression 'certain minimum education' in the proposed legislation. Section 14 of the Bill states that the Minister may by Regulation prescribe different minimum standards of education in respect of children of different ages or of different capacities. The failure of the State to specify what is meant by 'a certain minimum education' and to clarify what may be taken into account must give rise to the question of whether the State has abrogated its duty to legislate under the Constitution (Article 15.2) and further whether it has answered the difficulty raised by Geoghegan J. in the D.P.P. v. Best case i.e. that there could be no vindication of the prima facie constitutional right of the parent to educate his or her children at home if there is gross uncertainty as to the circumstances in which they might be found guilty of an offence in circumstances where they are making an effort to provide home education.

The Constitution provides that the minimum standard of education should be assessed in the light of the actual circumstances. The only actual conditions provided for in the legislation refers to age and capacity and no regard is had to the means of the family or the values or cultural background of individual home educators. It could certainly be argued on this basis that what is envisaged by minimum standards of education in the Constitution differs from what is envisaged in the legislation.

There is no express power in the Constitution vested in the State to decide by regulation what constitute minimum standards. Any standards set by the Minister are in any event subject to possible review by courts where it is demonstrated that the Oireachtas has, under the guise of definition of minimum education, actually gone further than was ever envisaged by Article 42.3.2.

CHALLENGE TO THE CONSTITUTIONALITY OF THE NEW LEGISLATION

Parents aggrieved by a refusal to register them as home educators, who have been unsuccessful in their appeal against the decision of the Education Appeals Committee, would have standing to bring an action by way of judicial review seeking to compel the Minister to register them on the basis that a failure to do so constitutes a breach of their constitutional rights. Similar relief could also be sought by means of plenary summons. In any event, such an action would involve High Court proceedings and would be expensive.

An action might similarly be taken to challenge the constitutionality of a conviction on the basis of the proposed legislation. It might be argued that to ground a conviction on due course of law that the law must be clearly prescribed and identifiable. It is certainly arguable that despite the proposed new legislation which goes some way to clarifying what is meant by minimum standards in the Bill, there is still no common understanding of the constitutionally enshrined concept. Given that the Constitutional rights of the parents are clearly set out and are fundamental in Irish law, an argument can be advanced that limitations to those rights should be strictly construed and the benefit of the doubt given to parents.

The legislation has yet to be passed by both Houses of the Oireachtas and brought before the President. There must be a strong possibility that the President will decide to refer this legislation pursuant to the provisions of Article 26 of the Constitution for an opinion as to its constitutionality. To a certain extent, this is something which the Home Education Network may not welcome in that if an Article 26 reference is made and it is determined that the provisions of the legislation are constitutionally compatible, this limits the extent to which the provisions of the Bill may be subject to future constitutional challenge - although it would not prevent the argument being made that the powers laid down in the Act were being exercised in a given case in an unconstitutional manner or that the regulations prescribed by the Minister as to what constitutes minimum standards of education are unconstitutional.