YOUTHREACH: The Legislative Framework and its Implications for Centre Policy and Practice
Paper delivered at the National Conference of YOUTHREACH Co-ordinators, Nuremore Hotel, Carrickmacross, Co. Monaghan, 13 February 2001
Part 1: The General Constitutional and Legal Framework
I have two purposes in this section of the paper:
1. To outline the main sources of Irish Law
2. To examine Constitutional provisions
1. The Constitutional Framework
The Education Act 1998 and the Education Welfare Act 2000 must necessarily be viewed against the constitutional framework within which all legislation must be enacted, as the Constitution of 1937 is the supreme source of legal authority in the State. The Constitution provides that all powers of government derive, under God, from the people whose right it is to designate the rulers of the State and to decide all questions of national policy. The people have set up the organs of State:
The Legislature (the law making machinery – the Oireachtas);
The Executive ( the Government of the day) and
The judiciary (the courts and the judges).
Ideally, these organs are required to act separately from one another within the ambit of the powers set down by the Constitution. However, the reality may be somewhat different. (Take, for example, the occasion recently when the High Court issued an injunction against the Ministers for Health and Children re. delays in provision of special units with treatment for children requiring such provision).
2. Relevant Constitutional provisions
2.1 Article 41
Article 41 deals with the Family. In this Article, the state guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State. A considerable number of judgements of the Courts have ruled that the only family recognised and protected by the Constitution in Article 41 is the family based on marriage. Yet growing numbers of children are born outside marriage and thus outside the protection of Article 41.
The Report of the Constitution Review Group (1996) recommended a change in the definition of the term ‘family’ to include stable, long-term relationships. Moreover, it is generally accepted that the need to adjust the focus of constitutional reform on children’s rights is long overdue.
2.2 Article 42 (Education)
If we look at Article 42 of the 1937 constitution, we find scant reference to the rights of the child. In Article 42 the primary and natural educator of the child is the Family but this is not an absolute right being subject to the State’s right and duty, as guardian of the common good; to require that the children receive ‘a certain minimum education’ moral, intellectual and social’. It should be noted that the child born outside marriage has been recognised by the courts as having the same ‘natural and imprescriptible’ rights to religious, moral, intellectual, physical and social education, under Article 42 as has a child born within marriage. ‘Imprescriptible’ rights are natural rights which pre-date the Constitution and are vested in man by a higher authority.
With regard to provision of primary education, we find an indirect duty falling on the state in Article 42.4: (the general provision)
‘The State shall provide for free primary education ………..’ rather than to provide it directly;
[The State shall] ‘endeavour to supplement and give reasonable aid to private and corporate educational initiative’; and
[The State Shall] ‘when the public good requires it, provide other education facilities or institutions with due regard, however, for the rights of parents; especially in the matter of religious and moral formation’.
Acknowledging the fact that some parents will fail in their duties towards their children, Article 42.5 (the exceptional provision) provides:
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.
The Report of the Constitutional Review Group has also recommended the elimination of such terms such as “natural”, “imprescriptible” when describing children’s’ rights as this tends to prevent State intervention in cases of necessity. (In this regard see The Child Care Act, 1991 which permits a Health Board to take a child into care in certain circumstances.)
Children’s rights to education have traditionally been viewed as vested in their parents and until recently the courts, have largely upheld this approach. Normally the rights of the child are protected by parents or guardians. Huge societal changes have resulted in a growing number of parents who, for one reason or other, do not discharge these rights and in these instances the courts have, since the mid 1990s, upheld the right of the child to have his/her safety, health and welfare vindicated by the State. These categories have included severely and profoundly handicapped children, (the landmark case here is O’Donoghue v. Ireland & the Minister for Health  2 IR 20) and autistic children (Sinnott v. Minister for Education and Science HC). O’Hanlon J. In the O’Donoghue case stated: “I am of the opinion that it is not sufficient for the respondents [the State] to grant as a matter of grace and concession educational benefits which the applicant is entitled to claim as of right.” The right to which the judge was referring here was a constitutional right but, of course, the right to education has also become a statutory right since the coming into force of the Education Act, 1998. Accordingly these rights, and in particular the right to “a minimum education,” are no longer discretionary rights but rights which must be provided under the law.
3. What is education?
Our Supreme Court has interpreted this term as follows: “Education is the teaching and training of a child to make the best use of his or her inherent and potential capacities, physical, mental and moral” (Ryan v. A.G.  IR294, O’Dalaigh C.J.). In the O’Donoghue case, Mr Justice O’Hanlon broadened the scope of the constitutional term ‘education’ when he stated
I conclude, having regard to what has gone before, that there is a constitutional obligation imposed on the State by the provisions of Article 42 s4 of the Constitution to provide for free basic elementary education of all children and that this includes giving each child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent or potential capacities, physical intellectual and moral whoever limited these capacities may be…
Consequently, the constitutional definition of the term “education” now includes not just teaching but advice and instruction which in turn implies ” support services” such as assessment, referral and treatment where recommended and, as we shall see, the Education Act 1998 makes provision for such service. Indeed I note, from Youthreach 2000: a consultative process (par 3.10), that the need for guidance, counselling and psychological services is acknowledged, as is the need to develop existing services especially for those already at risk of drug taking. The fact that statutory provision of such services has now been made under the Education Act, 1998 makes the delivery of such services a matter of urgency as these services are now a requirement under our law. No doubt policy decisions will be taken for the delivery of such service in the future by the National Education Psychological Service (NEPS) and by the Education Welfare Service (EWS) when it is up and running.
4. A Hierarchy of Educational Rights?
Not surprisingly, Article 42 echoes the fact that education which is at the base of the pyramid, so to speak, is the most fundamental and universal and so the highest constitutional protection in that Article is reserved for “primary or elementary education” (bun-oideachas):
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 and moral formation.
But when does primary education cease? We will look at this aspect more closely in part 2.
For the moment, it is sufficient to note that primary or elementary education may run on later in the case of a person under a disability. In the Sinnott case, Barr J. (H.C.) was of the view that in the case of Jamie Sinnott, a 23 year old profoundly physically and mentally handicapped and autistic person, primary education could be a life-long obligation in his case as he was under a disability and so his right to free elementary education ran on and was grounded in need not age. For the final word on this and other related issues, however, we must await the decision of the Supreme Court in the Sinnott case which is for hearing on 26th March next.
In Youthreach Centres you are dealing mainly with the delivery of “a minimum Education” to disadvantaged children in a programme which includes an input of vocational education and training. It is strongly arguable therefore that in the provision of support services this category of student needs to be accorded a high priority so that the State can discharge its obligations to ensure they receive “a certain minimum education moral, intellectual and social.” In this regard I ask the question; “should this right be positioned higher in the delivery of support services that for those students in second level education?” Barr J. in the Sinnott case stated
Those entitled to State aid by constitutional right should not have to depend on numerical strength and/or political clout to achieve their just desserts. Needs should be met as a matter of constitutional priority, and savings, if necessary, should be made elsewhere. A citizen’s educational right should be responded to by the State in full. A partial response has no justification in law, even in difficult financial circumstances which may entail the raising of new tax revenue to, meet such claims…
Barr J’s view included reference to policymakers when he mentioned
the administrators in the Department of Finance who play a major role in advising on the dispositioning of the financial resources of the State appear to be insufficiently informed regarding the constitutional obligations of the State to the weak and deprived in society to enable them to access realistically the degree of priority which should be attached to each such claim and the structure of priority which the State should devise in meeting its constitutional as distinct from other non-Constitutional obligations. It is of course, a fact of life that in time of economic difficulty the State may be obliged to reign back severely on expenditure and many projects for which exchequer funding is sought may have to be postponed or curtailed through lack of resources at the particular time… This necessarily implies that the ultimate financial decision-makers and officials who devise annual revenue/exchequer budgets must have real awareness and appreciation of the constitutional obligations of the State to all sectors of the community and in particular to the rights of the grievously deprived in society…
No doubt, we will hear a great deal more on the dispositioning of public funds in education as this whole area is likely to be a matter of some controversy in future years in which case the courts will adjudicate on the allocation and division of such resources in accordance with our constitutional law.
5. The welfare principle
The ‘welfare principle’ i.e. that the welfare of the child is paramount, is a central tenet of Irish Law and one of the most important rights of the child is to be free from child abuse which includes child sexual abuse. Staff should be made aware of the protections contained in the Protection of Persons Reporting Child Abuse Act 1998. Teachers and school staff should also be aware of the need to alert and liase with the appropriate Health Board official (designated officer) and/or the Garda Síochána. While the schools are not an investigative or intervention body for child protection, they may play a very significant role at recognition and referral level. Because of the special daily contact with children, teachers/tutors are viewed as singularly well placed to observe at first hand the indications of such abuse.
Youthreach is a special “out of school” programme, for early school leavers which is delivered by the Departments of Education and Science and Enterprise Trade and Employment and their respective agencies FAS and the VECs. This State funded nation-wide programme, which is aided by the EU Social Fund, caters for 15-20 year-olds and specifically targets young people who
have left the formal school system without qualification;
have not received or completed vocational training
have been at least 6 months in the labour market; and
are not in full-time employment.
Youthreach, which is running since 1988 and is attendance-related from the point of view of trainees, operates in a changing context. A budget is allocated to the relevant VECs and FAS and an allowance is paid out to the trainees provided students attend the youthreach programme. Youthreach aims to provide participants with the knowledge, skills and attitudes required to successfully make the transition to work and adult life. Educational institutions depend on goodwill and on good relationships and frequently the teacher or tutor is the only appropriate role model in a Youthreach student’s life. While the least desirable of all climates in a centre is possibly an overly legalistic one, those who formulate and implement rules and Codes of Behaviour need to be guided by basic legal principles.
7. The Social Background
Those who deal with students generally operate in challenging times and this is particularly true of those working in Youthreach programmes which cater for seriously disadvantaged young persons who are frequently disenchanted with formal school structures and with society generally. Many of these students have experienced failure, poverty and social alienation and so those seeking to lead them into new educational or training initiatives have a considerable challenge ahead. Some of these students may have had close encounters with the law. O’Mahony’s (1993) research into the characteristics in Mountjoy showed that 80% had been unemployed prior to imprisonment and 89% had left school by the age of 15. A further challenge meets those who work in Traveller programmes as this pre-supposes an understanding of the distinctive cultural background of the Traveller people. While certain tolerance and flexibility will be essential in regard to the conduct of these students, Youthreach programmes must have a structure and some rules.
8. Safety, Health and Welfare
Pastoral care is a crucial factor but the school also has a legal duty of care to all the students and a duty under the Safety, Health and Welfare Act, 1989 and the regulations made thereunder to provide a safe working environment for staff and students. Time spent pondering and planning appropriate Codes of Behaviour is, therefore, time well spent.
Another dimension which needs to be considered is the growing rights-consciousness in Irish society. We are living at a time when individual rights are coming to the fore and this is reflected increasingly in our mainstream schools and educational institutions. Solicitors are seeing a significant rise in teacher negligence cases and in school discipline related cases. Teachers have been challenged on the methods adopted by them in dealing with a classroom, school yard or tour incident. Negligence has been alleged against teachers/tutors in failing to handle situations properly or at all. Principals who have applied sanction, such as exclusion or suspension on a pupil have been taken to court and school policies and practice have been assessed by the courts for reasonableness and fairness. (Alison Healy, “Solicitors seeing significant rise in teacher negligence and school discipline challenges”, Irish Times, 17th November 2000).
One of the lessons arising from all of this is that schools and centres of education should seek to lessen the risks attached firstly by ensuring that the premises comply with obligations laid down under the Fire Services Act, 1981 the Safety, Health and Welfare at Work Act, 1989, and the Occupier’s Liability Act, 1995, to which I will return later.
8.1 Legal perspective
A Youthreach Centre is in loco parentis to the student until s/he reaches his/her 18th birthday or is married (age of Majority Act, 1988). Generally when a student reaches his/her 18th birthday, s/he is an adult under the law. Accordingly, s/he is entitled to receive assessments and reports personally. As an adult, such students may make contracts (legally binding bargains) and other important adult decisions and this fact has an important bearing on school life. A centre, of course, still has a duty of care to 18 year-olds but it is not as high as to minors (those under 18 years) – reasonable care is required. As students grow towards maturity, the law recognises that they are gradually moving towards adulthood and the duty of care of the institutions towards them lessens accordingly. Youthreach centres and schools are not responsible for every accident on the premises but only for those where there is a fault either in the state of the premises or in the system of supervision.
8.2 Accidents on Premises/ Negligence
If a student suffers injury on the premises, as a result of a foreseeable fault in the premises or a result of lack of supervision of staff, then legal liability arises. If such a student sues the Centre in these circumstances, s/he may be awarded damages by a court or the matter may be settled between the parties and later the court will rule on the adequacy or otherwise of the offer. It is usually the board of management/VEC which is sued as the board is indirectly liable for the civil wrongs of its employees provided they are acting in the course of employment. The important point to remember is that in order to succeed, a student must prove negligence before they are entitled to damages. However, most of these cases are settled out of court at the discretion of the insurers and, if the student is a minor, the offer made is ruled by the court for it adequacy or otherwise. A student or a staff member may be injured by another student who is violent or under the influence of drugs or alcohol so it is important to consider this fact when planning a Code of Behaviour.
8.3 General Legislation
As I have already stated educational institutions are subject to some general legislation. For example, the board/VEC is required by the Safety, Health and Welfare at Work Act, 1989 and regulations made thereunder, to provide a safe environment for staff and students alike. Many important obligations fall on the employer (the VEC or CTW Board of Management) and on the employees (tutors, teachers and organisers) under this legislation, including the duty to draft, display and update a safety statement in regard to the premises. Although many Youthreach centres are in atypical buildings, the significance of this legislation cannot be overlooked.
The Centres have further obligations in relation to safety and fire protection on the premises under the Fire Services Act, 1981. (see Glendenning, Education and the Law, Butterworths, 1999: 301). The Occupier’s Liability Act, 1995 is also relevant as one of the effects of that Act is that students are regarded as “visitors” for the purposes of section 1(1) and the Centre owes “the common duty of care” towards such students under section 3. Essentially, this is the same duty as imposed by the common law in negligence cases.
9. Consultation with Students/Parents
The special nature of a Youthreach Centre will be echoed in its disciplinary rules which will take account of students’ backgrounds and difficulties. While such rules will, of course, be more tolerant and flexible than those used in mainstream schools, a balance will need to be continually sought between accommodating the needs of these students and at the same time maintaining a safe working environment for other students and staff of the Centre. When dealing with senior students, these rules ought to reflect their growth towards maturity by taking account of their viewpoints and those of their parents. Students and their parents should be consulted as to the contents and disciplinary measures contained in a Code of Behaviour and should participate in its formulation.
Ireland’s record in safeguarding childrens’ rights was internationally scrutinised in January 1998 before the UN Committee on the Rights of the Child in Geneva. There was considerable criticism of Ireland’s failure to implement a national strategy on children; of the disadvantaged status of the children born to unmarried parents; of the degree of child poverty and homelessness; of the high incidence of child suicide; and of the failure to take the views of children into account in family life, school life and in society generally.
10. Disciplinary Issues and Sanctions
There are certain sanctions which may not be imposed on students. A teacher or other member of staff may not:
physically chastise a student; (Non-Fatal Offences against the Person Act 1997, s24)
throw a copy-book at a student; (assault?)
search a student’s bag without his/her permission or their parents’ permission;
search their person even if you suspect they are in possession of drugs or guns:
force a statement from them – it may not then be admissible in evidence in court.
Call them a “thief” (risk of defamation).
You may however ask student to turn out their bags, which are the student’s property or you may search their lockers, which are school property.
Research in England has shown that educational institutions which implement a system of rewards for good behaviour, and promote positive self-images, are more successful than others in ensuring a good school climate. Even in the toughest schools, there is a place for the positive side for reinforcing and restoring poor self-images.
A Code should set out the characteristic climate or ethos of the institution, its aims and objectives and how these are to be achieved. Procedures for dealing with bullying, drugs, alcohol and other controlled substances should be included in the Code (in this regard see Misuse of Drugs Act, 1977-1984 and in particular ss3, 5 and 19). Particular attention should be paid to possession of and supply of drugs and/or permitting the premises to be used for such purposes.
10.1 Acting Reasonably
Teachers/tutors are expected by the courts to behave reasonably and fairly at all times even when under pressure. Any sanction administered in school must pass the test of reasonableness. (See R. v Taylor – The Times, 28 December 1983 in which the Court of Appeal affirmed the conviction of a teacher who threw a copy book at a 12 year old “occasioning actual bodily harm”. Nolan J. stated: “reasonable chastisement involved a controlled if not entirely cool, response and the throwing of an exercise book could not come within that category”
10.2 Fair Procedures
The role of fair procedures is a growing on in Irish administrative law and is relevant to the Youthreach context. The most common expression of the principles of ‘natural justice’ or ‘due process’ is found in two Latin maxims:
“audi alteram partem” – “hear both sides”- in other words give the wrong-doer a fair hearing; and
“nemo iudex in causa sua” – no one can be judge in his own cause i.e. the rule against bias.
It is a basic rule of English and Irish law that even a person of no merit, if such a person exists, should not be condemned without being given an opportunity to defend themselves. Essentially, the rule against bias means that any disciplinary or grievance procedure should, in so far as is reasonably practicable, be conducted by a person or a body of persons who has not previously been involved in the matters at issue and that the deciding body should give both parties the opportunity to fully state their case and reply to any charges or criticism prior to a decision being made. In the Irish context, the principles of natural justice are buttressed by the constitutional guarantee of fair procedures which has been implied by the courts into Article 40.3.1 (see In re. Haughey 1970 Ir217). To put it another way, in the Haughey case, the provisions of Article 40.3 were held to be a guarantee of fair procedures.
One area of growth concerns allegations of bullying as a result of which students suffer injury, physical or mental (there are a growing number of settlements in this sphere, see Glendenning, p351). How then does a school protect itself against such allegations? The Code of Discipline should include a policy on bullying. By virtue of the ingenuity of human nature and its diversity, the Code cannot provide for everything, nor would this be prudent. It is wise to leave room for discretion of the governing body, the VEC or Board of Management. Get parents to sign the rules or if the student is over 18 years, s/he should sign personally.
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