Republic of Ireland
Where a mentally handicapped child sought to vindicate his right to primary education, notwithstanding that the State had granted him a place on a concessionary basis, the High Court held that a determination of the rights and duties in issue was required.
The Applicant was a mentally handicapped child residing in the Cork area. There was only one organisation in his area which provided for the education of mentally handicapped children. When the child reached school-going age, he was denied access to this organisation as there were no vacancies. When the Applicant began proceedings to compel the State to provide free education, he was informed that he would be provided with a place.
The High Court found that the State had a constitutional obligation to provide for the education of children. They rejected the argument that the Applicant could not be educated and held that "primary education" under the Constitution included the education of handicapped children. Whilst the Respondents had granted a place to the Applicant, they had done so on a concessional basis. They could therefore withdraw it. In addition, the question as to the whether the State was meeting its obligation to provide free primary education for mentally handicapped children was in doubt. The proceedings were not moot.
A constitutional right was at issue which had been repeatedly contested by the Respondents. O'Hanlon J was not satisfied that the matter was adequately addressed by the Respondents funding a place for the Applicant. It was not for them to choose when to allow the exercise of a constitutional right which they were obliged to allow; "that which is already due in justice may not be offered as a gift charity".
Points of note
The grant of a constitutional right by concession is not sufficient and where the Court considers it necessary to spell out constitutional rights and duties, it may do so notwithstanding a concession made by the State.