O’Mahony on the Proposed Constitutional Amendment on Children – Education Aspects
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As part of the proposed constitutional amendment on children, the proposed new Article 42.2 proposes to enumerate, for the first time, a number of the rights of children, including “the right of the child to an education”. The proposal to include an explicit right of the child to education is welcome – indeed, it was recommended by the Constitution Review Group in 1996 – but in all probability, it changes little. The existence of such a right, correlative to the duty of the State under the existing Article 42.4 to provide for free primary education, was clearly reognised in Crowley v Ireland  I.R. 102 and has never been questioned since. The new provision could potentially be interpreted as being broader, given that it refers to “an education” rather than merely to “primary education”. However, it is unlikely that the courts – and particularly the current Supreme Court – would interpret this as including a positive right to education at a level higher than primary, given that the corresponding duty of the State under the re-numbered Article 42.8 would still refer only to primary education. While the Oireachtas Committee Report states that the rights that are recognised in the proposed Article 42.2 are “designed to make a tangible difference to children’s rights”, there is no suggestion that there was any intention to take a step as significant as extending the right to free State education beyond primary level, and in the absence of such a clear intention, no court is likely to so interpret the provision.
One clear effect of inserting express recognition of “the right of the child to an education” is to copperfasten the finding of the Supreme Court in Sinnott v Minister for Education  2 I.R. 545 that the right to free primary education ends at age 18. This is because the phrasing of the right as being a “right of the child”, coupled with the position of this right within an Article entitled “Children”, reinforces the reasoning of the Supreme Court that “primary education” is directed towards children and that the provision as a whole is concerned with children. This amendment would seem to close off the possibility (slim as it is, admittedly) of any future court reinstating the reasoning of Barr J in the High Court in Sinnott that the current Article 42.4 makes no reference to any age limitation and that the term “primary education” should thus be interpreted by reference to need and not age. It would still (in theory) be possible to interpret the provision as applying to adults whose disabilities make them the functional equivalent of a child as they are still dependent on their parents; but again, this seems unlikely, as this was not in any way intended by the Oireachtas Committee, and the Supreme Court in Sinnott expressly rejected this argument.
The proposed new reference in Article 42.1.1° to cherishing all the children of the State equally would appear to do little in the educational context other than to restate, without addition, existing equality and non-discrimination guarantees contained in Articles 40.1 and 44.2 and fleshed out in the Equal Status Act 2000. The language of this proposed provision is obviously taken from the 1916 Proclamation of Independence, which gives the provision historical resonance, but also accounts for the rather unusual term “cherish”. It is unclear what exactly is encompassed by a constitutional duty to “cherish” all children equally – in all likelihood, nothing more than is encompassed by the existing guarantee in Article 40.1 not to discriminate arbitrarily against children, and specifically not to discriminate against them on grounds of their religious profession, belief or status. The text of the Report clearly indicates that the primary concern of the Oireachtas Committee in recommending the inclusion of this provision was to ensure that all children, including children of unmarried parents, were considered equal in the eyes of the Constitution, as the restriction of Article 41 to marital families had previously raised questions over the application of Article 42 to children born outside of marriage. There is no indication of any intention to reject the restrictive interpretations attaching to Articles 40.1 and 44.2 in the education context; broader equality concerns were not considered in any detail.
If education had really been a focus of the Oireachtas Committee Report, then the obvious angles for development would have been the inclusion of a right to an effective education and the right to equality of educational opportunity, as these aspects of the right to education are widely recognised by international law instruments such as the UNCRC and ECHR. Existing case law already provides some support for the former; the inclusion of recognition of the latter right was explicitly considered but rejected by the Constitution Review Group in 1996. Given that either right could be used so as to make positive claims on State resources, they were never going to feature in any proposals in the current climate. The child’s right to be heard could potentially have been directed towards the education setting rather than merely “judicial and administrative proceedings”, but its inclusion even in its current form remains an important step. In any event, the expansion or reinvention of educational rights under the Constitution was never part of the remit of this Committee. The key aspects of this particular proposal are directed towards the powers of the State to intervene to protect the best interests of children in cases where their parents are failing to do so, and the child’s right to protection and care and right to be heard. This is where the significance of the proposal lies; the inclusion of an express right to education is unlikely to be anything more than a footnote in an otherwise very important reform proposal.