THE High Court yesterday ordered the Minister for Education and Science to provide 29 hours of home tuition a week to an autistic child.
The decision is regarded as significant in relation to the powers of the courts to make mandatory orders against the State over the provision of education.
Ms Justice Mary Laffoy's order applies pending the provision either of an appropriate school place for four-year-old Jeremiah Cronin or the outcome of his full court action against the State.
The judge also ordered the minister to pay fees of ?300 a month for consultant supervision of a home tuition programme for Jeremiah.
Legal sources consider it significant for a judge to make such a mandatory order against the State at the interlocutory stage of a case (pending a full hearing of the action).
The State had argued in similar actions that, in light of the Supreme Court decision in the Jamie Sinnott case, the court could not make mandatory orders. But lawyers acting for a number of disabled children have argued Mr Justice Adrian Hardiman's decision in the Sinnott case left open the option to take proceedings seeking such orders under the Education and Equal Status Acts.
In his proceedings against the Ministers for Education and Health, the Southern Health Board and the State, Jeremiah, suing through his mother Margaret, of Kilbarry, Macroom, Co Cork, sought declarations that the defendants had failed to provide services appropriate to his needs as an autistic child.
It is argued the defendants, in failing to provide such services, were in breach of their obligations under the Constitution, the Education Act 1998, the Equal Status Act 20002, the Child Care Act 1991 and the Health Act 1970.
Breaches of various international conventions are also alleged, including the European Convention on Human Rights.
Pending the hearing of the full action, interlocutory orders were sought requiring the provision of funding for home tuition for Jeremiah who has been diagnosed with autism of a moderate degree of severity and has impairments in language and social interaction.
During the interlocutory hearing, the court heard the SHB has made provision for the child.
Frank Callanan, SC, for Jeremiah, argued the child had a constitutional right to free primary education appropriate to his needs and the defendants were obliged by virtue of the constitution to provide for such education.
Counsel also claimed that Jeremiah was entitled to the provision of speech and language therapy, occupational therapy and other therapies which were necessary to enable him make the best possible use of his potential capabilities, physical, mental and moral - however limited those capacities might be.
In his defence, the Minister for Education admits he has a constitutional obligation to provide free primary education and denies breach of that responsibility.
The minister argued that the scope of his constitutional obligation was a matter for the trial of the action.
In her reserved judgment on the interlocutory application yesterday, Ms Justice Laffoy said the reliefs being sought at this stage were designed to provide for interim measures pending full hearing.
She found the plaintiffs had established a fair issue to be tried regarding the alleged breaches of Jeremiah's rights and that the balance of convenience favoured granting the interim orders for home tuition.
The judge noted the application was grounded on affidavits which had thrown up a complexity of evidence, not to mention fundamental conflicts of professional opinion.
It was not the function of the court at this stage to resolve such conflicts even if it could.
In particular, the court not make a judgment as to what was in the best interests of Jeremiah, which was what the proceedings were all about.
However, the judge remarked, the affidavits on both sides displayed a level of contention and acrimony which she did not find helpful.