Special Education Provision and Article 42A; Unexpected Obligations

Cormac Donnelly


The Children’s Rights referendum campaign was largely supine towards the requirements of children with special educational needs.  The campaign in favour centred on widely-publicised reports on failures by bodies of the State to protect and vindicate the rights of vulnerable children in harmful home environments or the care of the State;[1] the campaign against emphasised a perceived loss of autonomy of the family and intrusion by the State, particularly on religious grounds. [2]However, this article will argue that recent developments in the interpretation of Article 42A leave open the possibility that the guarantees contained therein have expanded upon and rejuvenated the case for an expansive understanding of the state’s obligations to educate children with special educational needs, unexpectedly bringing to the fore a group previously thought to be left out of the changes wrought under Article 42A.

Firstly the Constitutional requirements of Article 42 with regards to the current provision of special education will be outlined, alongside an explanation of the manner in which this is provided for in legislation, and implemented in state schools.  An exploration of Article 42A and its treatment will then be offered, and finally, this analysis of Article 42A will be applied to the current obligations recognised by the State to posit that, on a broad reading of Article 42A, the State is obliged to accommodate children requiring special educational assistance far beyond its present efforts, and that the present widespread failure to provide education reported across the state represents not only a moral failing on the part of the Government, but an unconstitutional failure in its duty towards children.

The Right to Education:

The drafters of the Constitution most likely envisaged little in the way of required support for children with special educational needs.[3] Article 42 itself was ‘among the most innovatory’ in the Constitution in its commitment to a fully socio-economic right;[4] however the article does not specify individual educational needs and uses broad strokes to define the state’s educational responsibilities.  Instead, recognition of the constitutional obligation of the state to provide support for children developed from the locus classicus of much Irish constitutional law, Ryan v Attorney General.  Therein, Ó Dálaigh CJ described primary education as ‘the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral.’[5] This definition widens the scope of education to be provided for by the State beyond a teleological one (the education ordinarily received in primary schools) to a purposive one (education considered primary or fundamental).  It also contemplated primary education lasting beyond the standard age-limit imposed by the scho0ling system, which would later be confirmed in Sinnott v Minister for Education. [6]

If Ryan laid the foundations on which the understanding of primary education was built, then O’Donoghue v Minister for Health built upon it to construct the constitutional position as we understand it.[7] O’Hanlon J, in deciding in favour of a plaintiff seeking an order compelling the state to educate in spite of a profound disability, stated that there was ‘a constitutional obligation... to provide for free basic elementary education of all children and that this involves giving each child such advice, instruction and teaching as will enable him or her to make the best use of his or her inherent and potential capacities, physical, mental and moral, however limited they may be.’[8] This definition very clearly places the continued education of children with special educational needs within the bounds of the guarantee of education contained within article 42.3.

While later cases would restrict the extent of this right’s application against the state both in limiting the age of those who could seek education (as in Sinnott above) and in preventing plaintiffs from seeking out preferrable facilities to accomodate children’s needs (as in O’Carolan v Minister for Education),[9] the conception of primary education laid out in Ryan and O’Donoghue shows a judiciary expanding upon the existing constitutional provisions to at least include those children requiring special educational support.  This position would find statutory congruence in the Education Act 1998.  Under S6 of the Act, which defines the objectives of the statute, much of the classic constitutional fare of protecting parents’ choice in schooling and preserving the Irish language is wedded to a commitment to (i) ‘give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs;’ (ii) make ‘available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;’ (iii) ‘promote equality of access to and participation in education and to promote the means whereby students may benefit from education.’  In both the legislative and curial spheres, there would appear to be some willingness to extend and improve the constitutional lot of children with special educational needs.


This willingness should not be overstated, however.  In criticising the decision in O’Carolan, Conor O’Mahony states that the ‘minimalist approach’ which modern courts have shown this right, and the deferential manner in which it has been constructed, have endorsed ‘the adoption by the State of an approach whereby the bare minimum provision is made for children with special educational needs.’[10] That the majority in Sinnott limited the age of applicability to 18 (with Murphy J dissenting in favour of a 12-year limit) similarly conflicts with any requirement to maintain the ‘physical, mental and moral’ development of the child; doing so reduces the requirement to ensure the minimum standard of education and provision of primary education to a box-ticking exercise, which can be abandoned once the state is seen to have made a de minimis attempt to fulfil its obligations.  The courts are not the only body which has indicated a potential retrogression; s32 of the 1998 Act, which laid out the establishing of an ‘educational disadvantage committee’ under the Department of Education, has been removed by virtue of S7 of the Education (Amendment) Act 2012.  This severs a valuable medium through which information on the state of the special education system and the insights of concerned groups could be brought before the Minister for Education.  S5(a), ssii of the Amendment Act provides an indication of the impetus for this change, in inserting amongst the responsibilities of the Minister an obligation to ‘provide value for money’ in administering the education system.

Thus, while the right to education set out in the Constitution, the dicta of the courts in Ryan and O’Donoghue, and the Education Act 1998 ought to be a firm one, a combination of reticent deference on the part of the courts to apply more-than-minimal obligations to the state, and parsimony in the Department of Education, have placed the right to special education in a state of tergiversation.

Article 42A

The insertion of Article 42A into the Constitution was characterised by uncertainty.  Academic commentators before and after the successful passage of the amendment were uncertain as to what effects (if any) the new section would have upon the scrutinised corpus of children’s rights’ case law.[11] The amendment itself would be delayed by a challenge to the media coverage of the campaign.  When the amendment finally came into effect in 2018, the results were as-yet unknowable.

Following the decision in In Re JJ, it is evident that the amendment has had a substantial, but ephemeral impact upon children’s rights.[12]In opting to recognise a ‘wide ranging, though subtle, change to the posture’ of the constitution,[13] the court in In Re JJ cast much of the established jurisprudence on children’s rights into doubt, without clearly drawing a line under which previous judgements would be upheld.[14]As a result, it is possible to speculate that the emergent Article 42A and its postural changes will affect the case law surrounding education, and critically, the rights of children with special needs to access education. 

Article 42A.1 binds the State to recognise, affirm, protect and vindicate ‘the natural and imprescriptible rights of all children.’  Article 42A.2.1 redefines the test for intervention by the State to a failure in duty by the parents toward their children ‘to such extent that the safety or welfare of any of their children is likely to be prejudicially affected.’  Central to the purpose of the amendment, and one of its key effects as illustrated in In Re JJ, is a separation of the test for intervention by the State from moral culpability on the part of the parent as understood in the replaced Article 42.5.  Failure in duty is now understood to be defined by reference to the safety or welfare of the child, and requires the State to intervene in the area by acting with regard to the ‘best interests’ of the child.

The Special Education System

Emerging from a framework in which ‘Irish Special Education and General Education, while connected, had developed separately and appeared to run along parallel lines,[15] the EPSEN Act 2003 envisaged a radical overhaul in the Irish Special Education system, furthering the work of the Education Act 1998 to place integration to the fore of the objectives of the new system.  To that end, existing mainstream educational facilities would be supported with extra resources, determined initially by staff/student numbers in primary and secondary school settings respectively, and subsequently nuanced with resources allocated by assessing the socio-economic profile and academic performance of schools.  The EPSEN Act would lay out the beginnings of a ‘legislative framework that encapsulates the ethos of an inclusive philosophy.'[16]Inclusion as understood in this framework would involve integrating children with ‘high-incidence’ special-needs requirements into mainstream education while offering limited places to children with ‘low-incidence’ educational requirements in separate facilities; attempting to retain the benefits of a separate educational system while integrating special education into the wider general educational sphere.

The system envisaged here has, however, failed on several points.  Places in separate facilities and additional resources are allocated upon proof of a medical diagnosis of sufficient infrequency to warrant placement.  Such an approach is at odds with the rights-based approach fostered in the UN Convention on the Rights of Persons with Disabilities, concerned as it is with a ‘respect for difference and acceptance of persons with disabilities.’[17] Placing the emphasis upon a medical model of disability fails to accurately reflect the wide variation in abilities present in children with special educational needs owing to its singular focus on categorisation; promotes a totalising, homogenising view of disability as a problem to be overcome in pursuit of reintegration into ‘normal’ society; and places children with special educational needs in a position of indefatigible dependence.[18] The EPSEN act, in spite of its commitment to inclusive education, and in spite of the nominal acceptance by the Irish State of the UNCRPD’s rights-based approach, roundly fails to divorce itself from this medical model, defining special educational needs as resulting from ‘an enduring physical, sensory, mental health or learning disability, or any other condition.’[19]

Once a medical diagnosis of sufficient gravity has been obtained (a requirement which favours those with the ability to pay for private medical assessment), places within special educational facilities are difficult to guarantee.  The failure to publish centralised national figures on the special educational system obscures the scale of the problem, however in Dublin alone, there were ‘up to 80 children with special needs’ unable to attend school in 2022 owing to a failure to provide sufficient places within these facilities.[20] Adding to this, the decentralised nature of the school system and the autonomy of school boards places individual schools in a position to refuse places to children with special educational needs.  The latent powers of the Minister for Education under S8 of the Education (Admission to Schools Act) 2018 to compel the formation of a special education class go some way to stymie the problem, but rely upon the need for such a class in an area reaching a tipping-point; it is scant comfort to children with special educational needs in an isolated area seeking the inclusion to which they ought, statutorily and constitutionally, to be entitled.

Ultimately, a ‘variety of exclusionary practices...have helped to facilitate the establishment of a de facto two-tiered education system in Ireland.’[21] The changes wrought by the EPSEN Act may have sought to tie together the separate strands of the education system.  But if ‘lack of resources, poor planning and a disconnection in the provision of services’ marked the original bifurcated special education system,[22] then this legacy has continued with the adoption of the EPSEN act.  Owing to the retained emphasis on an outdated and poorly-performing medical model of disability, which stands at odds to Ireland’s obligations under the UNCPDR, and an approach to special education which flatly ignores individual privation in favour of intervention where the need is overwhelming, the inclusivity espoused under the EPSEN act remains a fresh coat of paint over an education system which remains cleft in twain.

State Intervention

Considering the above law and the state of  the special educational system at present, there are several avenues through which the State could be found to be

in breach of its constitutional obligations to educate children with special educational needs who are currently not able to secure places in mainstream or special schools.

The most obvious provision to rely upon is the right to primary education.  The current understanding of special primary education as extending up to the age of 18 allows parents of children with special educational needs to rely upon this right irrespective of the age of the child in question, and is a relatively robust protection.  However, as  demonstrated above, the courts have been unwilling to enforce this right in comparative assessment of the value of the facility on offer.  It would also require demonstration that the education received continues to be ‘primary’: an area of potential difficulty for parents of children entering into mainstream post-primary schools who require additional resources or staff, and are facing resistance from the school itself, or the department of education in relation to allocation.[23]

Article 42A presents new potential avenues by which children’s right to special education may be vindicated.  For the approximately 850 children in 2017/18 who were left to be schooled at home due to lack of appropriate places in their locality,[24]the new parental failure test in Art42A.2.1 could represent an unlikely boon.  The separation of the test from moral culpability outlined above places parents in a position wherein their actions in home-schooling children with SEN, in the absence of any state-sponsored education, prejudicially affects their welfare, despite their admirable efforts in attempting to stymie the effects of the situation that their child has been left in.  This triggers the need for intervention by the State to vindicate the child’s rights, and could place another constitutional obligation upon the state to provide a place for the child in question.  Notably, this test could be met beyond the parameters of primary education, for example where children with SEN are denied places in secondary schools having completed their education in a mainstream school with significant support.

Finally, a broad view of the parental failure model could allow for an unorthodox method of finding the state responsible.  Per Article 42.1, the parents are acknowledged as the primary educator of the Child.  Article 42A.2.1 lays out the test for when the State may intervene as being one of parental failure amounting to prejudical impact on the child’s welfare.  If the state could be shown to have subsumed the role of the parent as primary educator in select special educational settings, then the test for intervention could be levied against the state qua parent.  This would involve the courts intervening where the government fails to provide adequate support for or places to children with special educational needs, and applying to the state (primarily the department of education) the same tests which it would apply to a parent; prejudical impact on health or welfare.



That the state is failing in its moral obligation by providing inadequate places for children with special educational needs is undeniable.  Recent attempts to remedy this in legislation have not resolved the problem, and have flown in the face of widely-understood practices in relation to the provision of special education.  Owing to the uncertainty which the 2012 Children’s Rights referendum (and the case of In Re JJ) engendered in much of the previously established children’s rights jurisprudence, there may be a case for a greater constitutional obligation to be imposed. The significant deference and limitations which the courts have interpreted into Article 42.4 could previously have prevented any finding of a constitutional obligation in circumstances wherein children were denied special educational support at post-primary level, or denied support/specialised facilities and incapable of making comparative assessments with other facilities.  However, Article 42A and its changes to the rights of children, wide-reaching and undefined as they currently appear to be, represent hope in this regard.  The existing guarantees as to the provision of primary education can only be strengthened by the introduction of the shift in constitutional posture represented by article 42A.  If the parental-failure model of Article 42A.2.1 can also be adapted to act in the special educational context, be that applied to the parents of children with special educational needs, or indeed to the State acting in loco parentis, then an amendment which was largely silent on the rights of children with special educational needs could emerge as one of their most significant legal protection in Irish law.

[1] See for example; South Eastern Health Board, Report on the Kilkenny Incest Investigation (PI 9812, Stationary Office 1993);   HSE, ‘Report on the Roscommon Child Care Case’ available at <https://www.tusla.ie/uploads/content/Publication_RoscommonChildCareCase.pdf> accessed 1st July 2022.

[2]Paul Cullen, ‘Campaign for No Vote in Children’s Referendum’ The Irish Times (Dublin 18th October 2012).

[3] Criticisms levied against the draft provisions of the sections regarding education were largely focused upon the failure to sufficiently denominate differing religious backgrounds, alongside fears of the ‘seemingly unending stream of apostate and semi-apostate writers’ which the education system had and would produce; See Gerard Hogan, Origins of the Irish Constitution (RIA, 2012) 551.

[4] Gerard Hogan, David Kenny, Rachael Walsh, Gerry Whyte, Kelly:  The Irish Constitution (Bloomsbury 2018) [7.7.1].

[5] [1965] IR 294, 350 (Ó Dálaigh CJ).

[6] [2001] IESC 63, [2001] 2 IR 545.

[7] [1993] IEHC 2, [1996] 2 IR 20.

[8] ibid, 65.

[9] [2005] IEHC 296, [2005] 6 JIC 293.

[10] Conor O’Mahony, ‘The Right to Education and “Constitutionally Appropriate” Provision’ (2006) 28(1) DULJ 422, 428.

[11] Oran Doyle and David Kenny, ‘Constitutional Change and Interest Group Politics’ in Richard Albert, Xenophon Contiades and Alkmene Fontiadu The Foundations and Traditions of Constitutional Amendment (Bloomsbury, 2017).

[12] In the Matter of JJ [2021] IESC 1.

[13] ibid, [130].

[14] Conor O’Mahony, ‘The Same But Different? Article 42A and the Threshold for Intervention in Family Life’ (2022) Irish Supreme Court Review (Forthcoming).

[15] Georgiana Mihut, Selina McCoy and Neil Kenny, ‘Special Education Reforms in Ireland;  Changing Systems, Changing Schools’ (2020) International Journal of Inclusive Education <https://www.tandfonline.com/doi/pdf/10.1080/13603116.2020.1821447?needAccess=true> accessed 2 July 2022.

[16] Sarah Arduin, ‘Implementing Disability Rights in Education in Ireland; an Impossible Task?’ (2013) 36 DULJ 93.

[17] UNCRPD, Article 3 (4).

[18] Arduin n16, 97-8.

[19] See Sarah Arduin, ‘A Review of the Values that Underpin the Education System and its Approach to Disability and Inclusion’, (2015) 41(1) Oxford Review of Education 105, 113.

[20] Carl O’Brien, ‘Up to 80 Children with Special Needs in Dublin Without School Places’ The Irish Times (Dublin, 18 May 2022).

[21] David Doyle, Marie Muldoon and Clíodhna Murphy, ‘Education in Ireland:  Accessible Without Discrimination for All?’ (2020) 24(10) International Journal of Human Rights 1701, 1714.

[22] Noel Dempsey TD, Dáil Deb 23 October 2003, Vol 573 Col 2.

[23] See Office of the Children’s Ombudsman, Plan for Places (2022) available at <https://www.oco.ie/app/uploads/2022/06/Plan-For-Places-Full-Report.pdf> accessed 2 July 2022.

[24] Margaret Murphy O’Mahony TD, Dáil Deb 9 July 2019 Vol 985 Col 2.

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