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1. This is a consultative case stated by Judge Mary O'Halloran, a Judge of the District Court sitting in Listowel, seeking pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961 the determination of a question arising in a prosecution under the School Attendance Act, 1926 as amended.

2. The offence with which the Respondent had been charged was an offence under Section 17 of the School Attendance Act, 1926. The parts of that section relevant to this case read as follows:-

3. In plain language, the effect of the above is that if a parent within one week after the service of the warning notice gives the gardai a reasonable excuse for not sending the child to school such parent commits no offence. The expression "reasonable excuse" is not defined for the specific purpose of Section 17 but Section 4 of the Act which creates the obligation on a parent of every child to whom the Act applies to cause such child to attend a national or other suitable school "unless there is a reasonable excuse for not so doing" contains four instances of "reasonable excuse" for the purposes of that section. The only one of them 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". Essentially, the defence in this prosecution is that the Respondent is educating her children at home and has a constitutional right so to do. The material parts of the Case Stated read as follows:-

4. Although it is not referred to in the case stated, it was agreed at the hearing that a purported excuse for not sending the children to school was given to the guards within the seven days from the service of the warning notice. The warning notice was apparently served on the 21st February, 1997 and a letter dated the 26th February, 1996, but presumably intended to be 26th February, 1997, was written to Sergeant Sullivan of the Garda Siochana in the following terms:-

5. The enclosed letter of January 1997 written to the Department of Education was brief and read as follows:-

6. It is important at this stage to refer to the onus of proof. Section 18 of the 1926 Act provides that in any prosecution for an offence under the Act the burden of proof of any of the following matters in relation to the child to whom the prosecution relates shall lie on the person prosecuted, that is to say:-

7. There is no doubt that in this case an excuse was offered which purported to be a reasonable excuse. If there had been no evidence from the Inspector in the Department of Education but only evidence from the garda officer, I do not think that the learned District Judge would have been entitled to hold, having regard to the particulars given by the parents, that the education being offered was not "suitable elementary education" within the meaning of the Act. What might be regarded as "suitable elementary education" at one period of time might not be the same as what might be considered to come within that expression at a later period. But in my view when considering what is "suitable elementary education" the Judge must have regard to the Constitution and must therefore assume that whatever might be considered "a certain minimum education, moral, intellectual and social" within the meaning of Article 42 of the Constitution would equally be "suitable elementary education" within the meaning of the 1926 Act. Adopting this approach I think that if the Inspector from the Department had not given evidence, the learned District Judge would have been bound to acquit. However, with the encouragement of the Respondent, the Judge procured that an assessment be undertaken and evidence was given by a District Inspector of the Department of Education and Science whose report is annexed. That report is a very detailed report. The Inspector finds some aspects of the education praiseworthy and he was critical of others. His conclusion is contained in paragraph 6 of the report and I think it helpful to quote that in full.

8. In the body of the report it is stated that about three hours is devoted to home teaching. Lessons are conducted in the living room making use of a large table around which the children are seated. There is a small blackboard available. Each child has a set of textbooks suited to the class level they would be in if they were at school. The mother as best she can follows the primary school curriculum and she has obtained photocopied sections of the primary school curriculum/teachers handbook. There are however no lessons in Irish though it is hoped that some arrangement for this may be made in the future. French is taught for one hour a week by a trained primary teacher.

9. I now turn to the actual question put to this Court by the learned District Judge. The answer to the question must be approached in the first instance by considering the relevant constitutional provision because of course it takes precedence over anything in the 1926 Act if there is a conflict. As is already noted, Article 42 provides that 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. But even more precisely the article goes on to provide that:-

10. If nothing further was stated in the article there is no doubt that the Respondent here would have a complete defence because whether the criticisms of the quality of education being given are valid or not, she is undoubtedly providing education in the home and prima facie she has a constitutional right to do so. In those circumstances she could not possibly be guilty of a criminal offence arising out of a failure to send her child to school. However, it is not quite as simple as that in that the following is stated in paragraph 3, sub-paragraph 2, of Article 42:-

11. That is the only relevant qualification which the Constitution poses in relation to the parents right to educate the child at home. It would seem to follow from that that an education which comes within the description of "a certain minimum education, moral, intellectual and social" must necessarily be regarded as being "a suitable elementary education" within the meaning of the 1926 Act.

12. But what is that "certain minimum education"? It is by no means clear. It may well be that the framers of the Constitution envisaged that the State would, in legislation or in some other form or manner, set out what it considered to be the minimum standard required by the Constitution. If so, that has not been done and I will be elaborating on this more fully later on in the judgment. At this point I would just observe that in my view the concept of what is "a certain minimum education, moral, intellectual and social" is not a static concept and it can vary according to public expectations. I think that that is clear from the inclusion of the expression "in view of actual conditions". I would also take the view that the use of the word "minimum" does not indicate some lowest common denominator. I think that any reasonable standard of elementary education of general application which might be laid down by the State would be regarded as corresponding to the expression "a certain minimum education" used in the Constitution.

13. At this stage it is important to refer to some very relevant case law. Carberry -v- Yates , (1935) 69 I.L.T.R. 86 was a District Court appeal from a conviction by the District Court in Enniscorthy of an offence under the School Attendance Act, 1926. The child was being educated in a private school not certified as a suitable school by the Minister and not including in its curriculum the teaching of the Irish language. In every other respect there could have been no objection to the school. The Circuit Court Judge, Judge Devitt, allowed the appeal expressing himself in fairly trenchant terms to the general effect that there is no need for Irish to be included in the syllabus for the education to be "suitable elementary education" within the meaning of the 1926 Act. It appears from the interesting article that has been handed up to me by Professor Osborough entitled " Education in the Irish Law and Constitution " and contained in 1978 Jur. (n.s.) 145 that that decision caused political fury in some circles including Government circles at the time and that that was largely the historical backdrop to and context in which the abortive School Attendance Bill, 1942 was passed. The late President Douglas Hyde referred that Bill to the former Supreme Court of Justice under Article 26 of the Constitution and the judgment in that case is the nearest authoritative guide available to the meaning of the relevant provisions in the Constitution. In the judgment of the Court delivered by Sullivan C.J. at p. 344 the following passage appears:-

14. Further on in the same judgment and on the same page the former Chief Justice observed as follows:-

15. It will be noted from that passage the emphasis placed by the Court on the prima facie right of the parent to control their own children's education. It will also be noted that the Court took the view that the State is entitled to legislate to define what is meant by "a certain minimum education". What I infer from this is that the Court was not saying that the State was obliged to do so and in fact the State has never done so. In the absence of such legislative or other formal definition, however, I am of opinion that a District Court Judge trying a charge under the 1926 Act and hearing evidence to the effect that a parent is in fact doing his or her best to educate a 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 find the parent guilty of an offence under the 1926 Act. In the absence of statutory or other formal definition by the State it would be wrong in my view for the District Judge to go into fine details of teaching methods etc. with the result that different District Judges throughout the country might form different views and no parent trying to educate his or her child at home would ever have any security as to whether he or she would have a reasonable excuse or not in the event of a warning notice being served. Such a regime can hardly be viewed as properly to vindicate the prima facie constitutional right of the parent to educate his or her children at home. There is no vindication of that right if there is gross uncertainty.

16. On the particular facts of this case I am of opinion that the learned District Judge would not be entitled to form a view beyond reasonable doubt that a suitable elementary education was not being provided, having regard to the provisions of Article 42 of the Constitution. I would therefore answer the question posed in that form.

17. There is just one matter which I should add. It is obviously implicit in the view which I have taken that I agree with the late Judge Devitt that the inclusion of the Irish language in the curriculum, at least in the case of children not living in the Gaeltacht, is not essential to comply with the constitutional minimum. Indeed as has been pointed out in the articles which have been submitted to me, it was quite common in the past and for all I know it may still be, for children in the Inishowen peninsula in Donegal to be educated across the border in Northern Ireland in schools where no Irish might be taught. Likewise it is well known that there have always been parents in Ireland (albeit a very small number) who have sent their children to preparatory schools in England where again obviously no Irish would be taught. It would seem to me that what was contemplated by the Constitution as a minimum education would be the basic skills in reading, writing, arithmetic, such reading and writing to be in the vernacular and such other basic knowledge as might be universally taught. Even if some educationalists might believe that there should be some teaching of another language before the completion of primary education, the Respondent in this case has arranged for some limited teaching of French. Obviously if I am wrong in the view that Irish is not essential then there would be ample evidence before the District Judge to enable her to convict but for the reasons indicated I have held otherwise.