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Cite as: [2004] IEHC 350

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    Neutral Citation No. [2004] IEHC 350
    THE HIGH COURT
    DUBLIN
    (JUDICIAL REVIEW)
    Record No. 2000/12383p.
    Between/
    RICHARD CLARE (A MINOR) SUING BY HIS MOTHER
    AND NEXT FRIEND, ANN CLARE
    Plaintiff
    -and -
    THE MINISTER FOR EDUCATION AND SCIENCE,
    THE SOUTH EASTERN HEALTH BOARD, IRELAND
    AND THE ATTORNEY GENERAL
    Defendants
    APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH
    DELIVERED ON FRIDAY 30TH JULY 2004
    JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 30TH DAY OF JULY 2004.

    The Plaintiff's claim is for:

    (a) A declaration that the Defendants, each and either of them, in failing to provide appropriate education for the Plaintiff appropriate to his needs as a person suffering from Attention Deficit Hyperactivity Disorder (or other condition requiring special education), are discriminating against the Plaintiff in respect to the appropriate education facilities vis-a-vis other children and have deprived the Plaintiff of his constitutional rights pursuant to Articles 40 and 42 of the Constitution, and in particular Articles 40.1, 40.3.1, 40.3.2, and Articles 42.3.2 and 42.4.
    (b) Damages (including aggravated, exemplary or punitive damages) for negligence, breach of duty, breach of statutory duty and breach of the Plaintiff's constitutional rights.
    (c) various forms of mandatory injunctive relief directing:
    (I) the first-named Named Defendant to forthwith provide -
    (i) free education for the Plaintiff appropriate to his needs; and
    (ii) education for the Plaintiff appropriate to his needs.
    (II)The second-Named Defendant to provide respite care and family support services or other services to the Plaintiff pursuant to the Health Acts.
    Preliminary observations

    This action came on for hearing within four months prior to the infant Plaintiff reaching his majority on his 18th birthday. All witnesses agreed that he was an intelligent boy whose verbal communications skills were high and, judging from the evidence of Mr. O'Loughlin [T10 (17/12/03) p122 g388 125/6], was an exceedingly pleasant and agreeable person, but for some unstated reason I did not have the benefit of hearing from himself first-hand what were his past and then present problems in relation to his education and his schooling in particular. It may be that notwithstanding the boy's liking for the spoken word, and being happiest when taking part in amateur dramatics or drama workshops during summers holidays in his teenage years, that it was thought that he ought not to be brought into the court atmosphere for some reason. while I may be mistaken in my belief that on Friday 19th December 2003 he was seated at the back of the Court with his mother while

    Dr. O'Loughlin was giving evidence, I expressly draw no inference or adverse inference from his failure to tender evidence. I mention the fact because it is both usual and common in many negligence cases of schoolyard accidents or bullying that young boys and girls of much more tender years than the infant Plaintiff in this action tender evidence to the

    Court --

    The Plaintiff is the younger of two boys who were adopted by the Next Friend and her husband (who I was informed on the opening of the case would be giving evidence, but who did not, and thus deprived me of the opportunity of making any assessment as to the interrelationship he had with Richard, both as a man, as a father, and how the relationship between father and mother was, so as to have a full understanding of Richards's position in terms of a consistency of trust, support, guidance and discipline). Richard's elder brother, the only other member of the household -- who was apparently a model student and had progressed successfully to third-level education and was on the threshold of a professional qualification as an actuary -- did not give evidence of his relationship at home with Richard.

    These matters are mentioned not in criticism but to indicate the one-dimensional view available to the Court through Richard's mother as to the home -- which is the primary educator of a child. Professor Mace considered Richard as adroit [T1 (2/12/03) p77 113-14]; Dr. O'Loughlin stated Richard was very much a man who knows his own mind [T12 (19/12/03) p63 Q273 126-27].

    Much emphasis throughout the hearing of the case was on the evidence of a Dr. F. Charles Mace, otherwise Professor Mace, whose primary qualifications were as a psychologist, whose long varied and distinguished career is set out in a fifteen-page curriculum vitae. He was the first witness to give evidence in the case. This was understandable given his availability, but it was premised on facts not all of which were borne out by the witnesses as to fact or other witnesses. This notation is not critical, for I appreciated the constraints on the availability of a witness. Mrs. Clare was present in court throughout the evidence given by Professor Mace

    [T1 p13 Q50 16-13]. I formed the impression that her observation of Richard being "hyper" per Ms. Kay O'Connor at a very early age was intended to have the significance attributed to such observations by Professor Mace.

    The Facts
    (a) Pre school

    Richard was born on 20th April 1986. He and his brother, Conor (until recent years) lived in Waterford with his parents. His father is a one-time credit controller and is a manager of a credit union. Mrs. Clare had been a bank clerk until she got married. Having first lived in Tralee, the parents moved to Dublin. When Conor was four years old, Richard came to the family at eight weeks old. Both parents came from families of seven and eight siblings. Mrs. Clare was the youngest of her family of four brothers and three sisters. Conor posed no problem as an infant and it seems very few or little problems thereafter as he grew up and went through school and college.

    Richard was said by Mrs. Clare to have been an affectionate and loving child and funny and always talking when he was small. However, when she consulted Dr. O'Loughlin in 1999, when he diagnosed Richard as ADHD, she informed him that Richard was a cross baby. Professor Mace was informed by

    Mrs. Clare that Richard was very irritable and frequently crying in his first year of life. He was happy, apparently, at playschool in Dublin before he came to Waterford in November 1989. It was observed by Mrs. Clare and a Ms. Kay O'Connor, the supervisor of the playschool at which Richard attended, that he was "hyper" at the early stage of his life, a fact not conveyed by Mrs. Clare to the proprietors or teachers in either his primary or secondary schools. Mrs. Clare swore that at over age seventeen Richard still expresses his affection for her by hugging her five or six times per day. likewise, she swears that when Richard goes to bed at seventeen-and-a-half-years old, he still hugs his father.

    Conor had gone through school and university without incident and despite their differences, Mrs. Clare hoped that Richard would and will go to university.

    (b) St. Declan's National school

    During his time there, he was friendly and got on well with many children around his own age and in the housing estate in which he lived. Richard is not inclined to play ball games, perhaps because of dyspraxia, which affects fine motor movements -- it is completely separate from ADHD (T1 p45 Q135/137 19-25]. This is a matter that was not pursued with any degree of particularity during the hearing of the case and does not, accordingly, figure in my determinations as it is not referrable to ADHD which is the cause of complaint adambrated in the pleadings and throughout the hearing of the case. I do not have evidence as to why, particularly from himself, but early on in primary school he won a prize in an art exhibition (an artistic 'streak' that was to find an outlet in his summer holidays in his teenage years in amateur dramatics). When in first class at primary school, his teacher was a Mrs. White. Mrs. Clare avoided the question when she was asked by Counsel as to whether Richard was bold [T3 (4/12/03) pl2 Q98/99 114-15] but Mrs. Clare said Mrs. white said:

    "Mrs. Clare, don't be too hard on him or
    you will break his little spirit."

    I never did have (throughout the trial) evidence that would enable me to ascertain whether either Mr. or Mrs. Clare were indulgent as opposed to supportive parents (for they were supportive -- see the evidence of Dr. O'Loughlin [T12 (19/12/03) p5 Q15 X11]). It was accepted by Mr. O'Mahony, the Principal of St. Declan's Primary school, who did not recall ever meeting Mr. Clare but who often met Mrs. Clare, that they were decent, responsible parents and very interested in their children [T6 p10 Q46/47 121-25]. Mrs. Clare was certainly an assertive parent, and on the evidence given in court by Dr. V. O'Loughlin, and observing her demeanour in court both when in the witness box and while in the body of the court, with Mr. Clare, I am satisfied and find as a fact without doubt that not only was Mrs. Clare the dominant parent in the home (notwithstanding what she may have said in who was the boss, which I do not believe), the observation in court of the body language of an interaction between them leaves me in no doubt on this point, which is NOT an issue in this case.

    That, of course, does not mean that such legal rights as Richard had should not have had someone to champion them (per evidence of Dr. V. O'Loughlin [T12 (19/12/03) p5 Q15 X11-12]).

    Mrs. Clare considered Richard's reading ability in first class to have been beyond the standard (whatever that was) appropriate to such class. Mrs. Clare swore that by 1993, when Richard was in 3rd class (under Mrs. Dowling) his behaviour was such that she was called in by Brother Finbar, the then Principal of the school, to note that he was talkative in class, would not stay quite and was disruptive in class. When asked in direct examination [T3 (4/12/03) p14 Q119 115-17] if she was asked to do anything about this, her reply was:

    "I am not exactly sure, maybe they asked me to, you know, talk to Richard.... "

    She says she remembers talking to Richard about his behaviour over the years in junior or primary school. what response was made by Richard or what effect the mother saying "you can't go on like this" was not disclosed to me. Mrs. Clare swore she more than likely spoke to her husband about this matter, but cannot remember doing so. On an occasion when Mrs. Clare was assisting Richard at long division, when he seems to have been seven to eight years old, she records him as saying, "what do I need it for? I don't think anybody is going to ask me whether I know long division or not." Either Richard was an exceptionally precocious young boy of eight or if he said such as is attributed to him, I rather believe he was older.

    Notwithstanding nothing memorable of Richard in 3rd class under Mr. Knox, Mrs. Clare said that at parent/teacher meetings she would be told that Richard was disruptive or that he was talkative, "I always got that." [T3 (4/12/03) p16 Q138 129]. Nothing was said in evidence as to what steps were taken by one or either parent about this, if it was a complaint.

    In 4th class, Mr. Hughes was Richard's teacher. The only incident of note (over and above his talkativeness and general misbehaving) was that one day he fell down a flight of concrete stairs - - whether this was due to inadvertence, as a result of messing or play-acting, or defective premises was not disclosed. This incident was not related to any behavioural problem on the evidence of Mr. O'Mahony, which I accept is reliable [T5 (9/12/03) p157 Q561 118]. At this time, in Mrs. Clare's opinion, Richard was extremely popular.

    In 5th class, Mr. Sean Grant was Richard's teacher and Mrs. Clare swore that Mr. Grant was able to control Richard. If Mr. Grant, why not other teachers or Richard's parents? upon such consideration, I had no evidence. At this time in the school the Principal was a Mr. O'Mahony, who did give evidence and who presented himself to me as a concerned, decent, responsible and sensible teacher and human being with a real sense of care for those who were in his school. He did not know Richard personally, only as Conor's brother, whom he had as a pupil. He was not aware, as was sworn to by Mrs. Clare, of her being "summoned" by various teachers over the years concerning Richard's conduct, notwithstanding that he and other members of staff over the years met on an almost daily basis in the school canteen.

    Both Mrs. Clare and Mr. O'Mahony remember an occasion when Mr. O'Mahony recommended to Mrs. Clare to see a Mr. Richard Frank, a social worker in St. Brigid's Family Centre in Waterford. This arose because of concern by Mrs. Clare about Richard's conduct. Where the evidence of Mrs. Clare and Mr. O'Mahony differ on how this came about and its purpose, I prefer the evidence of Mr. O'Mahony as more reliable. Mrs. Clare swore that she decided that by early 1997, at the age of almost thirteen, there was something wrong with Richard. Mr. Richard Frank did not give evidence to the Court -- he was the person whose name was given to Mrs. Clare arising from her inquiry just mentioned. Mrs. Clare stated that she had told Mr. Frank that Richard was immature, causing problems at school and was a nonstop talker. Mrs. Clare herself appreciated that much of what was referred to as a problem with Richard was "attention-seeking" [73 (4/12/03) p20 Q164 14J5]. She gave no evidence of any reason for this.

    In 6th class, a Mrs. O'Shea was Richard's teacher at the beginning of the year, and when Richard was segregated in class he was not a problem, but once in the midst of the class Mrs. Clare says that what she was told by Mrs. O'Shea was that Richard became disruptive. Notwithstanding the relative proximity of St. Declan's School, it appears from Mrs. Clare's evidence that she was collecting her son of almost thirteen-years old from school.

    Richard's primary school reports were available to the Court and Mrs. Clare appreciated that as from June 1995, when Richard was nine, that "he had to be motivated at all times" [73 (4/12/03) Q184 130].

    There is no evidence of what was done at home in this regard or what was discussed with the school or any specific teacher as to what form this motivation took or should take and what effect (if any) would result from such motivation. Discipline in the home at about this time, Richard was about in 4th class, consisted in being sent to his room or to do without television or not being allowed out -- only the latter seemed to bite. Richard was quite happy to be in his own room, such 'discipline' was totally clearly totally ineffective [T3 (4/12/03) p23/4 Q188-193]. In the light of the evidence as a whole, I am unconvinced of the truth of the answer of

    Mrs. Clare that Richard took correction at home well or that his parents had control (in the sense of discipline and responsiveness as opposed to such to such as flowed from a sense of economic dependency) [T3 (4/12/03) p23 Q188 114-16], but I draw no inference, much less any adverse inference, to Richard or Mrs. Clare in this regard.

    The evidence of Mrs. Clare was that during Richard's years in st. Declan's Primary school she "was called in every year to discuss his behaviour" and that she "was rung up and asked to come in and see the teachers" [T3 (4/12/03) p51 Q195/196 119/28-29]. Yet, as of 29th April 1993, Mrs. Clare sent in a questionnaire from the South Eastern Health Board that Richard was not falling behind in school, nor had he any behavioural problems.

    By the time this case came to trial, the original Principal of St. Declan's, Brother Finbar, was retired about ten years. He was succeeded by Mr. Eamonn O'Mahony in 1994. Mr. O'Mahony, while a teacher in the school, had Richard's brother, Conor, as already mentioned, as a pupil, and, as already mentioned, Mr. O'Mahony did not have much contact with Richard in Richard's first four years in St. Declan's. Richard's school reports while in St. Declan's were the subject of debate during the hearing by Professor Mace, an American psychologist, a witness for the Plaintiff, Mrs. Clare and Mr. O'Mahony. Mr. O'Mahony presented, as I have already said, as a very solid, direct and experienced teacher of thirty years, and I accept his evidence that Richard's reports for 1st and 2nd class "were run of the mill" for a child of such class [T5 (9/12/03) p151 Q533/534 113-14/20], an ordinary child in 3rd class [T5 p152 Q538 117; Q540/1 124-28]. while Mr. O'Mahony noted the talkativeness recorded in Richard's report in 4th class, he stated of Richard, "He wasn't a major league player" [T5 (9/12/03) p153 Q543 122-23] and generally it "would be a very good report for parents to get" [T5 (9/12/03) p154 Q547 124-25]. Such critical remarks as appeared in Richard's report for 5th class, Mr. O'Mahony considered (and I believed him as a witness throughout his evidence) as "low level stuff" [T5 (9/12/03) p155 Q551 121]. During his principalship at St. Declan's while Richard was a pupil, Richard was never sent to the Principal's office. Mr. O'Mahony summarised matters in this way:

    "Not in the four years I was Principal, he was never sent to my office. And within our procedure in our school, a boy would be sent to my office or would be accompanied to my office by the teacher if he was displaying serious behaviours, such as bad aggression, towards his peers, interfering with property, being cheeky to teachers. Richard Clare was never in my office." [T5 (9/12/03) p156 Q555 112-18].

    Mr. O'Mahony knew that Richard was disruptive, giddy and talkative, but he was not a major disruptive influence in the school when in 3rd class. While Mr. O'Mahony could not categorically say yea or nay to Mrs. Clare's evidence that she and her husband were called into the school on a regular basis to deal with problems of Richard's behaviour, none of the teachers who signed Richard's reports had such a recollection when Mr. O'Mahony spoke to them. Mindful of the frailty of hearsay evidence and the elements of Mrs. Clare's evidence where I find her evidence not to be reliable I am satisfied that when Mrs. Clare was leaving or collecting Richard to or from school, she would meet the teachers from time to time and if occasion warranted, they might have spoken to her of Richard's conduct. I am not at all convinced, as she tried to convey in evidence, that Richard had a defined problem of which the authorities were or should have been aware and that they failed, neglected or refused to do something about it. I am satisfied and find as a fact that while Richard was at St. Declan's "his presenting problems", to adopt Professor Mace's language [T1 (2/12/03) p126 Q381 117], were not of such a severe nature to warrant a diagnosis. Accordingly, no evaluation or diagnosis for ADHD took place at that time: when Mrs. Clare enquired of Mr. O'Mahony as to someone who might meet with Richard, he mentioned a Mr. Richard Frank, who had a degree in psychology but who did not practise as a psychologist but was a social worker, who had addressed the annual parents meeting which dealt with bullying and self-esteem. Mr. O'Mahony was favourably impressed as to his problem-solving abilities and on that basis recommended Mr. Frank. This reference occurred in or about January 1998, when Mrs. Clare seemed to wish to consider "going down the psychology road" [T5 (9/12/03) p159 Q565 14]. Richard was not taken to meet Mr. Richard Frank when he was in st. Declan's. The note that Mr. O'Mahony had that Mrs. Clare was going to go "down the psychology road" was no reason for him to suspect anymore than simply that the parents were seeking reassurance on a problem that was agitating the parents and was not causing a problem in school, nor discerned to be a problem.

    In 6th class, Richard's report indicates that a problem with attention had arisen regarding mathematics which were particularly affected by his behaviour. Mr. O'Mahony noted that Richard had not moved forward as quickly as his classmates and that his overall behaviour was more inappropriate now that he was getting older. While Mr. O'Mahony could not be precise as to the time he first became aware of ADHD (Attention Deficit Hyperactivity Disorder), "it would have been 1997-ish" [T6 (10/12/03) p4 Q16 17]. The topic was not a known or common knowledge so far as Mr. O'Mahony and the teachers at st. Declan's were concerned or were aware in 1998. Matters changed quite radically in the sphere of knowledge for the school in 2000 and 2001 (when NEPS, the National Educational Psychological service, came into being in Waterford) .

    While in 6th class, Mr. O'Mahony was aware that the class teacher, Mrs. O'Shea, did send for Mrs. Clare and explained that Richard's behaviour was inappropriate and unacceptable, and that he would soon be going to secondary school and that his work and everything was suffering and he needed correction [T6 (10/12/03) p7 Q31 11-4]. Even in this context, Mr. O'Mahony considered that this was low-key misbehaviour [T6 (10/12/03) p7 Q33 120-21]. The teaching resources in st. Declan's over the period 1993-2003 was that from a school with one remedial teacher, there were now, since 2001, two full-time remedial or support teachers, one full-time resource teacher and two part-time resource teachers.

    Mr. O'Mahony did not feel or consider that there was anything in the behaviour of Richard to lead him [Mr. O'Mahony] to believe that Richard needed some form of special treatment or psychological assessment any more than any other children in the school needed [T6 (10/12/03) p24 12-4]. Mr. O'Mahony did accept that in 1997/98, teachers were not familiar with ADHD or "sticking labels on children" [T6 (10/12/03) p24 Q107 112-13]. Furthermore, that in terms of 2003, Mr. O'Mahony agreed that if Richard had been diagnosed with ADHD, he would look at Richard in a different light, but that he and his colleagues would not have known what ADHD was at the time [T6 (10/12/03) p26 Q114 124-25]. Equally so, it is to be noted that such diagnosis was not made until after Richard left St. Declan's, after he even met Mr. Richard Frank and Dr. McGovern, a clinical psycholgoist. Dr. V. O'Loughlin made a diagnosis on or about September 1999. There was no question of Richard not being given access to a professional who could arrive at a diagnosis of ADHD, the question or issue for such did not arise in the professional experience and judgment of Mr. O'Mahony or the staff of St. Declan's.

    In St. Declan's, Richard was well integrated with the other pupils, articulate, academically bright, had good potential, but his conduct was not always satisfactory -- he often acted as the class clown. Mr. O'Mahony said that he was not qualified to make any comment on Richard's progress in secondary school, but he had no reason to think that a boy would either slide dramatically or rise dramatically academically in secondary school. while Richard came to be diagnosed as having a disorder, he did not have a disability in the conventionally understood sense of mental disability. He had ability, but apparently found it difficult to harness his energy in a conventionally ordered way or manner. Mr. O'Mahony, not unsurprisingly, agreed that timely assessment and early intervention was very important in primary school for students with disability. while evidence was adduced as to the school skills and practice in 2003, I am satisfied that while at St. Declan's, Mr. O'Mahony and the staff of the school gave Richard all the benefits they could from their skills and resources that were required, and that Richard was not deprived of any resources, nor were the school, that were considered necessary and appropriate at the time.

    The evidence of Professor Mace was based on what he had been told by Mrs. Clare and the construction he put on the wording of the school reports. He expressed himself in this way:

    "A.81 well; the school reports that I received, many of which were, you know, in handwriting, in cursive [sic], indicated that these problems with concentration, paying attention, overactive behaviour were apparent when he attended preschool at age three. And then these problems carried on when he began in St. Declan's primary school at age four."

    When asked if he was able to form any view as to the impact of ADHD while Richard was in st. Declan's, his reply was:

    "A.84 . . it was clearly documented that he showed the symptoms of ADHD fidgeting, talking out loudly, difficulty sitting in his seat, very overactive, problems with concentration. That was all very evident, and his school performance seemed to clearly suffer as a result which is a very common consequence of ADHD." [T1 p27-28 Q81-84]

    Professor Mace stated in his commentary on the reports from st. Declan's that (1) teachers were not versed in DSM diagnostic criteria and do not use that terminology, and the reports are expressed in layman's terms; (2) the final report from St. Declan's was written by an American, and the difference in this report and others may have been attributable to "a characteristic of Irish communication to understatement". I do not consider that this latter observation calls for any determination on my part; my knowledge of linguistics does not lead me to a view that is not open to challenge.

    The views formed by Professor Mace on all school reports were based on those in conjunction two interviews with Mrs. Clare in December 2002/2003 (perhaps inadvertently referred to in evidence as 2001 [T2 pll Q25 116], and also in interviews with Richard. I am completely satisfied that Mrs. Clare did not inform Professor Mace of the fact that

    (1) in the "nine-year-old Selective Examination" Richard's father had noted to the South Eastern Health Board that Richard's progress at school was satisfactory, that there was no problem they would like to discuss with the school doctor; (2) she and Mr. Clare signed an application form for Richard to attend Colaiste De La Salle on 17th November 1997, indicating that Richard had no health problem; (3) that she had consulted Mr. Richard Frank but not taken Richard to meet him prior to Richard attending Colaiste De La Salle; (4) the year in which Richard was brought to a professional psychologist; and (5) the arrangements made with the De La Salle regarding the Parish Hall in 1999 and 2000. In short,

    Mrs. Clare had given Professor Mace select information -- this is not attribution of negligence or mala fides, it is simply recorded as a matter of fact that Professor Mace's information upon which he formed opinions was incomplete.

    Much of the evidence of Professor Mace directed at the period of Richard in St. Declan's was based on his belief that Mrs. Clare "was summoned to school every year specifically to discuss" Richard's behaviour [T2 p17 Q47 19-10], and when enquired of as to whether he could explain how "the problems waxed and waned" as disclosed by the school reports, his frank response was:

    "I wouldn't know why that happened. I mean, his mother came to school; perhaps there was some parental intervention at that point. I don't know. It's all speculation. I have noway of knowing that." [T2 p17 Q51 127- 30]

    while Professor Mace accepted that "the severity did not interfere with his [Richard's] academic performance [T2 p18 Q54 120-21] and acknowledged "that the severity of the symptoms did not rise to the level to cause extreme concern" [T2 p19 Q57

    119-20], he went on to say however that symptoms were apparent from the very first term.while it is clear from Professor Mace that things are done, and may very well have been done differently, in American [T2 p22 Q66 et seq 117 et seq], and that large swathes of his evidence is based on what he believed, he was told by Mrs. Clare that she was called to school to discuss Richard's behaviour problems. Yet, he did not know whether Mrs. Clare delivered and collected Richard from school during his primary school period and many other detailed facts concerning home. His understanding of Mrs. Clare being "summoned" specifically to discuss Richard's behavioural problems was flawed. He put the case Mrs. Clare clearly wished to put before the court in these terms:
    "A child who is having behaviour problems sufficient to be documented in school reports and sufficient to cause the school to call the parent in to discuss disruptive school behaviour would have been referred to a team of specialists, who would have done an assessment to determine whether or not the child had a behaviour problem that required intervention and that didn't transpire." [T2 p20 Q61 14-10]

    The frailty of his evidence and commentary on the reports from St. Delcan's is acknowledged in this way:

    " . because the language of the report is lay language and we can't determine anything specifically from these particular reports.
    The big issue is whether the parent was brought to school to discuss a problem."
    [T2 p22/3 Q69 127-30, 1]

    I am satisfied and find as a fact that the moderate ADHD which was diagnosed by Dr. V. O'Loughlin in 1999 did not in overall terms adversely affect Richard's primary school education, on the basis of the evidence before me. If Richard did not take correction well during this period of his life by non-compliance to authority or be being oppositional, there is no evidence that it was attributable to the school, and Professor Mace did not know to what it can be attributed to. I am satisfied, to the extent that I can on the evidence adduced, that Mr. O'Mahony and the staff of St. Declan's had a real care and concern for Richard as a pupil and person and were not wanting in their obligations to him, or negligent in failing to diagnose or to have diagnosed on reference ADHD.

    Professor Mace stated that from the age of four years there should have been a structed approach to instruction -- not necessarily individual instruction [T1 p57 Q173 126-27]. There is no evidence either way that the instruction given to Richard in St. Declan's or De La Salle or the Parish Hall, that it was unstructured. There is positive evidence that at Mooincoin instruction was structured.

    Colaiste De La Salle

    This is a large day secondary school, literally across the road from St. Declan's. At the material time it was a boys only school. Richard's brother Conor, who was quite clearly a very different personality to Richard and four years his senior, had gone to De La Salle and was quite successful there. The Clares decided that Richard should follow his brother and signed an application form dated 17th November 1997 for this purpose (though in her evidence Mrs. Clare said this was unnecessary [T4 p25 Q205 128-29], noting that Richard had no health problems. Richard sat and passed an Entrance Examination to the De La Salle.

    It is clear from Mrs. Clare's evidence that she did not give notice to or warn the De La Salle of her own sense that Richard had become a problem in the previous twelve months, that she had been to see or consulted Mr. Richard Frank about Richard, that she had (on her own evidence) been summoned each year by the teachers in St. Declan's about Richard's behaviour, that (as it was put to the court) there were several critical reports on Richard from St. Declan's. Mrs. Clare's response in evidence to the latter omission was "they didn't look for those reports" [T4 (5/12/2003) p55 116/17].

    In his closing submissions to the court, counsel for the Plaintiff (inter alia) said:

    "on one view, the school was not an appropriate placement for the Plaintiff
    . . .
    [see also Ms. Williams' evidence T8 (12/12/03) p28 Q62 L2-8]

    Yet, it was the school not only chosen by his parents, but persisted in despite several detentions, suspension and expulsion, and the evidence of Professor Mace being that it was inappropriate to the needs of Richard as contended for both by Mrs. Clare and her own expert witness. Richard went to the De La Salle in September 1998. The first written response from the school is dated 5th November 1998; informing the parents that he would be on detention on Saturday, 14th November, by reason of his removal from class for constant disruption on 28th September, and talking in the study hall on 19th October, despite warning. It appears from Mrs. Clare that at some time during the previous two months she had enquired of Richard how he was progressing at school and he told her there were no problems. A second detention issued on 25th November, to be undertaken on 5th December 1998, for being constantly disruptive in class when he had been warned on 19th October. He had to be removed from class on Friday, 16th October as a result of his behaviour (I have no evidence that he either did or did not confide in his parents over the weekend) and on 20th November 1998 he was disrespectful and mocking visitors to the school. In regard to both notifications, the parents were invited to make an appointment with the Year Master to discuss the cause of the problem. In regard to the second notice, Richard was also requested to make an appointment to see the Guidance Counsellor in the school. Subsequent to completion of the second detention, the Year Master, by letter dated 14th December, requested the parents to make an appointment to see him concerning Richard.

    In the month of December 1998, probably after the second detention on 5th December, and at a date unspecified, Mrs. Clare brought her son Richard to meet Mr. Richard Frank. I have no evidence as to whether Mr. Frank was given the reports from St. Declan's or the letters (or copies of the letters) from the De La Salle before expressing the views attributed to him by Mrs. Clare. When asked in direct evidence as to whether she was happy with the advice given by Mr. Frank, Mrs. Clare said "I was, yes, I suppose. I'm not sure. I can't remember that" [T3 (4/12/03) p28 Q227 118-19].

    In early 1999 (probably January) Mrs. Clare was given the name of a Dr. McGovern (by her general practitioner Dr. Devlin). As in the case of

    Mr. Frank, Mrs. Clare first met Dr. McGovern on her own and subsequent visits were between Richard and Dr. McGovern, who was a clinical psychologist. There were five to six visits by Richard to Dr. McGovern between January and May 1999. On Mrs. Clare's evidence, Dr. McGovern expressed the view that Richard should assume some personal responsibility for himself and not childishly depend on his parents to be called each morning to get up, face the day and get out to school. The pathetic response, as recorded by Mrs. Clare, was that the parents bought the son a radio clock which in a matter of weeks the son, not quite thirteen years old, threw out the window (T3 (2/12/03) p29 Q239 129-30). This, to me, speaks volumes as to the level of respect in which this young boy held his parents, his home and the degree of control (if any) in which discipline in the home was maintained. I make this observation in the knowledge of a characteristic of ADHD by Professor Mace of uncontrollable impulsive response. Notwithstanding all the years Mrs. Clare lived in Waterford, she could not say whether the De La Salle school was one or two miles from their home and, without lamenting in terms, said that the family had only one car and that Mr. Clare had to drive a perfectly able-bodied, almost thirteen-year-old to school about a mile or more away.

    In the period February/April 1999, Richard, who was referred by his parents and De La Salle concerning his behaviour management problems, attended

    Dr. McGovern, whose report is before the court. Richard had nominated his concerns as:

    1. Having difficulties growing up.
    2. Coming to terms with aspects of being adopted (a fact he was informed of, on Mrs. Clare's evidence, when he was very young. I have no evidence as to the circumstances of the giving of this information or whether it was given at an appropriate age for Richard or how it did or may have affected his sense of perhaps being abandoned or not wanted or beholden to his adoptive parents, or whether he had a sense of being with benefactors, or his 'wondering' about his natural mother or whether he had other natural siblings, or what guidance (if any) was given, sought or applied from an/the Adoptive Agency at the time on the mode of such transmission.
    3. Adjusting to the strict regime of school (a school in which his brother had been for four years by the time Richard arrived there.
    4. The prospect of earning more demerits slips.

    It is clear from Dr. McGovern's report of 20th April 1999, and the notices from the De La Salle, that even during the period Richard was attending Dr. McGovern Richard received detention notice from De La Salle. The elements of conduct complained of by the school were not solely related to causing disruption in class, but disrespect to a teacher, refusing to obey orders, spitting at another student (on 15/2/98 [sic] -- clearly a mistake as Richard did not go to De La Salle until September 1998), hitting another boy on the back and neck with a heavy school bag when the other student accidentally brushed against Richard on a corridor, refusal shower after PE, use of bad language, homework missing or incomplete on a number of occasions. It is clear from the foregoing that Richard's personal and social development and his respect for authority, altogether from his schooling, was a problem, a problem Dr. McGovern clearly saw as not solely school related. while allowing for the truculence of youth and a young boy wrestling with immaturity and a new school environment, respect for authority and other pupils who are human beings are values I would have considered ought to have been inculcated in the home, but that is not the issue for determination in this case.

    Dr. McGovern considered Richard's reading matter at home "may not be age appropriate; eg, Stephen King". Richard's conduct at home (verbal abuse and noncompliance) was being reflected outside the home. Dr. McGovern noted the ineffectual home discipline, in that when at home Richard would be deprived of "Playstation", that he can go to his room and find alternative ways of enjoying himself. His conduct at home and at the interpersonal relationship outside the home (in school at least) was non-compliant and oppositional.

    It is clear from the school notices of 17th February and 15th April 1999 that the parents were informed that there would be suspension initially for one week, later for two weeks, and this would follow after the meeting of the Board of Discipline. In the notices of 15th April and 4th May 1999, the parents were fairly warned:

    "The Board of Management will also be advised of your son's discipline record. Under the College Rules, if your son gets any further detention(s), then the Board of Management will decide and the student may be asked to leave the College."

    It was thus that matters stood at the end of Richard's first year in secondary school. There is no evidence that Mrs. Clare, despite the several notices from the De La Salle, ever made good the omissions before the year began. Mrs. Clare stated in evidence that Dr. McGovern's meetings with Richard were made known to the De La Salle by his going to the school to report on Richard. Neither Dr. McGovern nor anyone from the De La Salle gave evidence before me. Mrs. Clare, in cross-examination, admitted that notwithstanding that she was aware, on her evidence, that there was an incipient problem, she said she had hoped Richard would behave himself and wanted him to go into the De La Salle with a clean slate [T4 (5/12/03) p55/6/7 Q213-222]. Notwithstanding her hopes not being realised, she did not divulge the information to which I have referred. Equally so, Dr. McGovern did not diagnose ADHD.on 7th September 1999, the Deputy Principal of the De La Salle wrote a letter to the parents (inter alia) stating:-

    "I have, as requested, placed Richard in Class 2JC."

    Clearly, there had been an input by the parents on this issue. The letter concluded by expressing the hope that in placing Richard in 2JC it would enable him to make a fresh start. Richard did not appear, when at the De La Salle, to connect consequences with actions (an immaturity of young adolescents), which was an understandable worry to his parents.

    In September 1999, Mrs. Clare, through a contact (Ms. Shepherd), was put in touch with Dr. O'Loughlin, a consultant child and adolescent psychiatrist (who was a person in the Health Board Service). During the Summer of 1999 Mrs. Clare came to the view as a lay person that Richard had ADHD as a result of a radio programme and at an unspecified time having contacted the Adoptive Parents Association. Even if Mrs. Clare is not au fait with the nomenclature of ADHD, there is no evidence that she ever contacted or told the De La Salle before Richard went into second year as to what she had heard or whom she had consulted and her own lay person's sense of what shethought might be a problem for Richard.

    When Richard attended Dr. O'Loughlin in September 1999 (there were problems in the home to which I will return to later), Mrs. Clare swore that she did inform the De La Salle of Dr. O'Loughlin's diagnosis but was not sure as to whether Dr. O'Loughlin liaised with De La Salle. I am satisfied and find as a fact that he did. Dr. O'Loughlin gave evidence before me, and where his evidence in this or any other material matter is different to that of Mrs. Clare, I prefer the evidence of Dr. O'Loughlin as more reliable. I do believe Mrs. Clare without hesitation when she says she went to Dr. O'Loughlin because Dr. McGovern did not diagnose anything for her.

    Dr. O'Loughlin initially attempted to work psychotherapeutically with Richard and put him on medication; the supply or store of medication was under the control of the parents. They, in conjunction with Mr. Adrian Larkin, Deputy Principal (during school hours), attended to its administration. This treatment, with the withholding of sanctions by De La Salle at Mrs. Clare's request, appeared (on her evidence) [T3 (4/10/03) p36 Q278 13] to bring about some temporary improvement, but such did not last long. The notices from De La Salle of 23rd September, 26th, and 2nd December indicate incidents of concern to the school at almost one per week, again omitting elements of disruptive behaviour, there was one incident of disrespect to a teacher and one of lying or dishonest answer. The social or moral values that inform such conduct and the absence of their effective inculcation is, if not directly, then indirectly, being attributed to the defendants. The moral sense that might come from the study of religion, a subject which, on the parents' direction, was not given to him later when he went to Mooncoin, seems missing.

    Early in the year 2000 Richard's taking of medication was erratic and discontinued when Richard, in Dr. O'Loughlin's expression, "experimentally" overdosed on it and required admission to hospital. The description of the pre and post hospitalisation given by Mrs. Clare is of a youth completely out of control of his parents, who may well have been manipulative. It is clear from many of the medical reports and the evidence of defence witnesses that there were areas of difficulty in Richard's relations with his mother in particular. I accept Mrs. Clare's evidence that Richard's disrespect for his parents deteriorated over the period 1998 to the year 2000. However affairs were carried on in the home, Richard was clearly unresponsive -- it took two hours to get him to admit he had overdosed. I regret to record that if Mrs. Clare was as ill humoured on occasion and belligerent in manner as she presented in the witness box from time to time, where she conveyed a sense of affront that counsel should question her, I can well see how a young person could have difficulty in being open, responsive and trusting. This is not to doubt that Mrs. Clare was not doing her best as she saw it for Richard, nor should her personality be in the remotest way taken into account in determining Richard's rights and entitlements, but such goes much of the way to explaining the difficulties others had in trying to understand and help Richard.

    Matters took a serious turn in early 2000, when the Year Master, Mr. Tom O'Neill, wrote to the parents from Colaiste De La Salle on 2nd March 2000, as follows:

    "Dear Mr. and Mrs. Clare,
    As you know, your son Richard was involved in a fight before the mid-term break. You are extremely lucky that legal action was not taken by the parents of the injured boy. They have stated that if this happens again they will refer it to the Gardai and the courts.
    On Monday 28th and Tuesday 29th February Richard caused such enormous problems for a number of teachers in classes. In fact, his behaviour was so bad that he had to be removed from a number of classes. One teacher sent him to me.
    This outrageous behaviour will not be allowed to continue. Other students in his class have the right to learn in an atmosphere that is conducive to learning. Your son is preventing this from happening.
    Consequently, Richard is suspended from school indefinitely."

    For reasons with which Professor Mace would clearl disagree -- for he considered the regime in the De La Salle unsuitable for Richard's needs or requirements -- the parents were concerned that Richard would stay in the De La Salle. The parents met with the school authorities and a Ms. Geraldine O'Gorman on 13th March 2000 and signed an agreement (as did Richard) of the conditions upon which Richard was permitted to return to the school and to remain there. I do not consider the document to be something of an ultimatum -- the school had accepted a pupil who Mrs. Clare considered had a problem, she failed to inform the school in advance, the history I have narrated briefly followed, and in my judgment the parents and the pupil were not being unfairly or unreasonably treated when they were informed:

    "Failure to comply with these agreed conditions will mean that Richard will have to be removed from the school. This is a final chance. The Board of Discipline has been notified of the decision."

    Scarcely can the ink have been dry on this document than notices of detention dated 15th March and 20th March 2000 follow -- allowing that (perhaps because of the reporting system in the school took some time before notices of detention issued) some incidents were pre 13th March 2000, two were expressly referable to 15th March 2000. It was clear matters were going from bad to worse and the parents were written to on 4th and 5th April, and 2nd May, and a comprehensive letter of review was written on 8th June 2000. In the conclusion of the letter it is recorded that at a meeting with the parents on 23rd May:

    "We stated that our position was we would now refer the case for final decision to the next Board of Management meeting.. Alternatively, Richard should seek alternative educational facilities. In his case specialist home tuition on a one-to-one basis would be most beneficial to him.
    We all regret this situation but we have to provide for all our students. We recognise our lack of training and facilities to provide for the specialist needs of Richard. we feel his educational future would be best served by individual, one-to-one home tuition."

    It appears from the evidence that in or about March 2000 there was some conference in Cork on ADHD which Mrs. Clare had attended and which she says she gave literature concerning same to St. Declan's (which was not put to Mr. O'Mahony) and to the De La Salle who make no reference to it in any of their many communications, but she did mention to Dr. O'Loughlin that she had been at a meeting in Cork, and he so records [T11 p91 Q315]. Notwithstanding that, in a colloquialism, 'the writing was on the wall' from 13th March 2000, Mrs. Clare persisted in the belief against all the evidence of the previous one and a half years that things would come right for Richard in the De La Salle. I do not blame her for having a sense or belief that this would happen. I am satisfied and find as a fact that no request was made of the Defendants to provide any resources or facilities to De La Salle such as might have enabled them to provide for the alleged specialist needs of Richard. No party called a witness from the De La Salle. The Plaintiff was critical of this omission, but the onus of proving whatever case it was desired to make was on the Plaintiff. This point was signaled by defence counsel before the end of the Plaintiff's case and it is nihil ad rem that a possible witness may have said he had been subpoenaed by the Defendants. Equally, I am satisfied that Mrs. Clare did not put in place any "safety net" if things went wrong in the De La Salle [T4 (5/12/03) p74 Q280 127-30] .

    At a date unspecified between January and June 2000, Richard was referred to a clinical psychologist, Siobhan Reddy, who was in service with the south Eastern Health Board. Her assessment of Richard is as follows:

    "Overall, Richard has a good level of intellectual ability.. However, the significantly large discrepancy between verbal and performance scores would indicate some specific learning problems, but only to a mild degree. Given his high verbal IQ score, he would be expected to achieve well academically, however his mild perceptual psychomotor speed difficulties are likely to affect his academic achievement.
    Recommendations:
    1. I would recommend that Richard's slowness with written work and organisation difficulties is taken into account when completing written work: It would be helpful if he could be allocated extra time to complete work in class.
    2. Richard would benefit from extra one-to-one tuition on a private basis."

    Mrs. Clare, whenever she did receive Ms. Reddy's report, did not bring it to the De La Salle [T3 (4/12/03) p43 Q320 et seq 19-29].

    In or about this time, in May 2000, Richard ran amok at home. Mrs. Clare said Mr. Clare physically restrained Richard, Mrs. Clare phoned 999 and had Richard admitted to Waterford Regional Hospital. It was arranged that he be placed in the Psychiatric ward, where he remained for about a week.

    Dr. O'Loughlin, by letter of 29th May 2000, referred Richard to a Dr. Liz Dollard, a consultant psychologist with the South Eastern Health Board. The penultimate paragraph of her letter reads as follows:

    "Mrs. Clare feels that Richard's behaviour must be explicable in terms of a major psychiatric illness, despite my own and Dr. Michael Kirby's opinion that there is nothing in Richard's mental state current to suggest such."

    Dr. Dollard's report of 16th tune 2000 reflects no credit on Richard's conduct towards his mother. Dr. Dollard records Mrs. Clare as indicating that Richard "was a very temperamental baby", a view very much at variance to the impression she conveyed to me at the beginning of her direct evidence. It is clear from Dr. Dollard's report that Mrs. Clare appreciated that Richard resented being brought from one doctor to another at the behest of his mother (though this latter detail is not in the report), and this is consistent with what Richard himself told Ms. Joan Williams and Richard's response to Dr. O'Loughlin [T12 (19/12/03 p43 Q133 122-25]. Notwithstanding this appreciation, it is clear from Dr. O'Loughlin's report of August 2000 that Mrs. Clare requested him to see another medical person, a Professor Michael Fitzgerald.

    At an unspecified date sometime during the Summer of 2000, Mrs. Clare contacted the Department of Education and received a Home Tuition Form. On 28th June 2000, the Clares wrote (with enclosures) to the first-named Defendant. This letter was acknowledged on 10th July 2000, indicating that enquiries were being made about the matter. By letter dated 4th August 2000, the Clares indicated that if there was not a structure in place within three weeks the matter would be put in the hands of solicitors by 14th August. The formal acknowledgement of that letter is dated 12th August and a letter of 16th August indicated that the reports had been referred to the Inspectorate and NEPS for their recommendation on Richard's special educational needs. This was followed up by a telephone call recorded in a letter of 18th August 2000.

    Correspondence in late August 2000, and a letter or memo of the Clares which acknowledged that Richard had received chance after chance from De La Salle and Richard had now reached "the end of the line", preceded a meeting of the Board of Management of the school in September at which the Clares were present. The decision of the Board (contained in a letter dated 29th September 2000) was not to continue to offer a place to Richard in the school. Thus ended Richard's period in school with the De La Salle.

    Looking for a solution

    Notwithstanding having received two notices dated within a week of the parents and Richard having signed formal documentation with De La Salle on 13th March 2000, when all basic commonsense must have told them that 'the game was up' for Richard at the De La Salle, the Clares let a period of some three months go by, until 28th June when the school was closed and staff had gone on holidays, before even attempting to find an alternative to the De La Salle. Even if they did not seek an alternative but tried what I believe on any objective basis was as good as certain (or using Mr. O'Muiri's euphemism 'a high chance') to be unsuccessful; ie, to persuade the Board of Management to permit Richard to remain at De La Salle. Yet, while they themselves let a period of three months go by, they expected the first Defendant in particular to be able in August 2000, within three weeks, to provide a ready-made solution to their problem. Whatever real chance there might have been between 20th March and the end of the school year in early or mid June, leaving the issue until schools were closed added to the difficulties of finding a solution.

    Notwithstanding the views of the Clares and

    Ms. Forde, I am wholly satisfied by the tone of the notices and the frequency of infringements by Richard that any reasonable and responsible Board of Management would not have made any other decision than to formally expel him in September 2000.

    Much was made by the Plaintiff in the course of the hearing of the action that the De La Salle had written two letters to the Department, and a particular letter of 9th June enclosing a letter of 8th June entitled "To Whom It May Concern". The letter of 9th .June was addressed to Mr. Frank Fox, Post Primary Schools Teachers Administration section of the Department, Athlone, and stated (inter alia) as follows:

    "Further to your recent telephone call regarding Richard Clare, I am now requesting this student be offered one-to-one tuition. The reasons for our request are outlined in the enclosed report."

    Clearly, the Department were aware of Richard's problem and had taken the matter in hand and spoken to the De La Salle. The home tuition form was sent to Mrs. Clare but no response was ever received from her in that regard. It is quite clear from other evidence that she had resolutely decided that she was not prepared to have home tuition for Richard, for reasons which she gave during the course of the hearing.

    An Inspector in the Department, a Mr. Sylvester Murray (Silvaster O'Muiri), gave evidence before the court [T6 and T7], and whose evidence, where it conflicts with that of Mrs. Clare on any material matter, I prefer, as I found him to be a more reliable witness. Mr. O'Muiri telephoned Mrs. Clare on 24th August 2000, arising from the correspondence addressed to the Minister and his Department at the end of June. Mr. O'Muiri's responsibilities in June and to the end of July, when he went on holidays, were concentrated on the Leaving Certificate, monitoring the work of the correctors [T6 (10/12/03 p68/70]. On his return from holidays, he received the documentation. Mr. O'Muiri was aware from his reading of the papers submitted to the Department that Richard had been suspended by the De La Salle for misbehaviour and disruption of classes.

    Mr. O'Muiri appreciated that due to the suspensions Richard might be expelled from the De La Salle and so expressed himself to Mrs. Clare. He was anxious to find out from Mrs. Clare what the Department could do for Richard with regard to placement or provision for Richard. Mr. O'Muiri was aware of ADHD and while there was no specific policy in place at the time in the Department, he had been to seminars and had 'in-house' training and had dealt with cases of ADHD but not many [T6 (10/12/03) p64 Q283 115].

    Little seems to have transpired during the preliminary conversation Mr. O'Muiri had with Mrs. Clare on 24th August, but he said in evidence that he enquired if Mrs. Clare was interested in a place other than De La Salle, if the Department could find a place for Richard in another school, and she said she was not interested [T7 (11/12/03) p24 Q108 L6-9].

    On the second occasion on which Mr. O'Muiri telephoned Mrs. Clare (ie, 30th August 2000), she mentioned the O'Donoghue case and said to him "go and find out what has happened in Limerick, because that is what we want for our son". Before the end of the conversation Mrs. Clare said to him "anything you have to say to us, put it in writing". Mr. O'Muiri found this strange and had not encountered such an approach before in his many years of experience when dealing with parents. He apprehended that matters were likely to go the legal route. He explained to her his position as an inspector in regard to giving individual written reports to parents, and he found it difficult to reason with Mrs. Clare. Mr. O'Muiri was a very experienced inspector and I am satisfied and find as a fact that he fully appreciated not only Richard's problem but the dilemma the parents were in and their preferred course of resolution, and despite finding her "the most difficult parent he had ever dealt with" [T6 (10/12/03) Q219 X11-13], an opinion, on the basis of my observations in the limited time over two days in the witness box, with the restraints of the courtroom, I could well understand. Fortunately, this opinion did not deflect Mr. O'Muiri from his duty and concern for Richard's welfare. It did, however, lead to a certain reticence of communication to what I am satisfied was an already cautious nature.

    When the Clares wrote on or about 18th September 2000 to the Board of Management of De La Salle, it was stated that there was a lack of response from the Department, no reference is made to Mr. O'Muiri's conversations. A response there was, but not swift or adequate enough in the eyes of the Clares. Neither were the Board informed about the letters received by the Clares dated 16th and 18th August from Michelle Kavanagh, the Post Primary Administration 4 of the Department. I am satisfied further that Mr. O'Muiri contacted the De La Salle before the Board of Management meeting and they explained to him that the matter would come up before the Board of Management. He was clearly left under the impression, and I consider that it would as a matter of probability be correct, that they would not be prepared to talk to him further until after the Board of Management meeting, and Mr. O'Muiri accepted that position [T6 (10/12/03) p52/53 Q227 127].

    I am satisfied that Mr. O'Muiri looked at a number of options for Richard: (1) the possibility of a return to De La Salle; (2) the possibility of placing him in another school; and (3) the possibility of special alternative provision, a one-to-one tuition. All the pertinent defence witnesses knew and appreciated that the Clares wished Richard to be taken back to the De La Salle and much time and effort went into this proposal, which in my judgment, in the light of events from 1998 to June 2000, had no realistic hope of success. The Clares seemed to think that simply because the De La Salle, through its teachers and otherwise, were State funded, that the school could be persuaded, directed or bullied into accepting the representations of the Department. I am satisfied that the Defendants, through their officers, sought to have Richard taken back to De La Salle.

    Mr. O'Muiri had spoken with the principal and viceprincipal, but he properly respected such autonomy that the school then had to manage its own affairs and respected the considered decision of the Board of Management.

    Mr. O'Muiri discussed the prospect of home tuition with Mrs. Clare but she indicated she did not wish to have such for Richard (no stated reason was given to Mr. O'Muiri). In the period September/November 2000 Mr. O'Muiri had visited the De La Salle in relation to a pupil other than Richard, and kept his lines of communication open and visited other schools in Waterford sounding out as to the possibility of taking Richard; eg, St. Paul's Community College in Lisduggan, Waterpark, Mount Sion, the Abbey Community School in Ferrybank. Regretfully, these schools were unable to take Richard, but during the exploratory enquiries Mr. O'Muiri was trying to make interim tuition arrangements for Richard. Efforts initially with the De La Salle were unsuccessful, as were enquiries made of the vocational Education Committee and Mount Sion also without success. Ultimately, with the assistance of the De La Salle, a venue for the giving of private tuition was found in a local Parish Hall where Richard, with another boy with ADHD (in a much more pronounced form), was accommodated. The arrangement was that the teachers would come from the De La Salle, they would be paid by the De La Salle. It was unfortunate that the period from March to September 2000 was lost to a forlorn hope because Richard's schooling, which should have begun in September, did not resume until final arrangements were concluded on 24th January 2001, and teaching actually began on 9th February 2001. I do not blame the Clares for having a strong view that they wished Richard to remain at the De La Salle, neither do I blame the Defendants for not having immediately to hand a ready-made solution to a problem that was not assisted by the attitudes of Mrs. Clare and the litigation and the tone in which it was conducted in correspondence in particular.

    Taking a conspectus view of the evidence, I am satisfied and find as a fact that the officers, be they servants or agents of the Defendants, did all that they reasonably could at this time, and later, to try to ensure that Richard received appropriate education to his needs, even if in the eyes of the Clares it was not to their expectations or delivered at the speed they would have wished. A certain amount of time was lost or incurred between November 2000, when Mr. O'Muiri had organised that teachers from the De La Salle School would teach Richard and another boy (DH) in the Parish Hall. The permission of the parents of (DH) was necessary to put the arrangement in place, and even though the requisite documents were sent to them for signature, such were not returned and this delayed matters. This element of delay was unfortunate, but as the Department could not operate by dictat and the arrangements for Richard were considered to be reasonable and appropriate (and so proved when Richard was successful in is Junior Certificate), I am satisfied and find as a fact that the Defendants carried out and honoured their obligations to Richard. While others or indeed another inspector may have approached the difficulties pre and post expulsion differently, I am satisfied and find as a fact that Mr. O'Muiri made the best efforts he could in the circumstances and that they were adequate and appropriate.

    Having finally put matters in place in January 2001,I am satisfied that Mr. O'Muiri did not know what transpired in court later and that notwithstanding his retirement on 4th May 2001, he made one last effort before retiring to see if Richard could be accommodated in mainstream schooling for the academic year 2001/2002, and specifically left a note or memo on file that the matter should be reviewed or looked at again with a view to bringing back Richard to the mainstream for and in September 2001. It is true that he did not look at Mooncoin as a possibility, it being in a different area of Department Inspectorate in County Kilkenny, some seven/eight miles from Waterford City, but he did at one stage look into the possibility of Kilmacthomas in County Waterford, which was further in terms of distance from Waterford City, but it was within the Departmental Inspectorate area of Waterford.

    The Road to the Parish Hall (St. Joseph's & St. Benildus)

    Richard was fourteen years old in April 2000. Not only had his parents received the notices of 15th and 30th March 2000, to which I have earlier referred, they were also invited by letter of 4th May by the Deputy Principal to make an early appointment with the school Authorities over a matter of concern in regard to Richard's activities. They then received a notice of 5th May 2000 concerning Richard's misconduct, which repeated what they had been told twice before:

    "The Board of Management will also be advised of your son's discipline record. Under the College Rules, if your son gets any further detentions, then the Board of Management will decide and the student may be asked to leave the College." (emphasis supplied)

    A letter from De La Salle dated 8th June 2000, addressed "To Whom It May Concern", which was received by the Department shortly thereafter, recorded as follows:

    "At a meeting with Mr. and Mrs. Clare on 23/5/2000, we reviewed the discipline situation of Richard, we reviewed the teachers' reports, comments and recommendations on Richard. We stated that our position was that we would now refer the case for final decision to the Board of Management meeting. Alternatively, Richard should seek alternative educational
    facilities." (emphasis supplied)

    Furthermore, the Clares were written to by the De La Salle, by letter dated 25th August 2000, (inter alia) as follows:

    "At our last meeting with you on 23rd May last we reviewed in full Richard's discipline and behaviour. We advised, and subsequently advised the Department of Education and Science, that home individual tuition would be most beneficial to Richard. We advised you to seek alternative education facilities.
    We are not in a position to continue to offer Richard a place in our school. As stated in our letter of 23rd May 2000, we will refer the case to the next Board of Management meeting for final decision."
    (emphasis supplied)

    It is perfectly clear from that letter that the executive managers of the school had made a decision and clearly communicated to the Clares that there was no place in the De La Salle for Richard, but that the final say-so would rest with the Board of Management. An executive decision had been made.

    When Mrs. Clare was questioned in court as to whether there had been any discussion with Richard at all before he set out to go to school at the beginning of September 2001, about whether he was going back or on what conditions he might go back, or whether they had written to Mrs. Clare or spoken to her or anything of that nature, or did he just go down cold and find himself next day sent home, Mrs. Clare's answer was as follows:

    "No, he knew he could be suspended. I think we had told him that he would be suspended because De La Salle had rung us to tell us at that stage before we got the letter."
    [T3 (4/12/03) p70 19-17]

    In fact the letter said:

    "We now therefore will suspend Richard from Friday evening 1st September in accordance with the rules."

    There then followed this exchange in direct examination:

    "417 Q. At any rate, you had told Richard that this was something that was likely to happen?
    A. Yes, we did.
    418 Q. And how did he react to that news when got it from you?
    A. I cannot recall how he reacted. I don't think he would actually have believed that he would be suspended.
    419 Q. When he was actually suspended, how did he react?
    A. I don't know how he reacted then because at that stage he was with Waterford Youth Drama and they were
    putting on a play in September and he was taking one of the leading parts in it."

    I found great difficulty with this evidence for the following reasons:

    1. I can accept and believe that a young boy who had two years in a school in which he had several detentions and a suspension might well have been absorbed in the creative world of drama as a form of escapism.
    2. I cannot accept and understand how the parents, who were expressly told by the De La Salle that they were not in a position to offer Richard a place in the school and advised months earlier to seek alternative educational facilities elsewhere, could truthfully have told (if they did) Richard simply that he could be suspended.
    3. I can believe, given the confrontational nature of Mrs. Clare from time to time in the witness box, and in respect of other elements of her conduct revealed by evidence, that she thought she could down-face or bully the school into accepting Richard as a pupil.
    4. Notwithstanding Mrs. Clare's stated concern for Richard's welfare, it simply beggars belief that a boy who had expressed having some difficulties about being an adopted child was sent into a situation where his presence as a matter of almost complete certainty (on a strict view inevitable) would be rejected. The insensitivity of placing Richard in a position of not being wanted mortified and humiliated before his peers was cruel in the extreme. Little wonder if he was confused, disruptive, angry, unco-operative and perhaps ultimately withdrawn. If what we do has effects on other's autonomy and opportunities for social engagement, I am unable to determine with any degree of certainty how Richard (because Richard did not give evidence) was in fact affected by the actual events of that day in being placed in the circumstances directed by his parents. I can understand the effect of the suspension, but that was subsequent upon his being directed to attend the school by his parents.

    Mr. Callanan SC, in cross-examining Mr. O'Muiri, put it to him that "any parent would have a concern about the trauma of an expulsion on a child, the removal of a child from school", with which Mr. O'Muiri agreed [T6 (10/12/03 p81/2 Q356]. Yet, Mrs. Clare said she could not recall Richard's reaction to this most serious of events, which fractured Richard's education (the later formal Board Meeting at which Richard was not present copper-fastened the events of the first day of term) and the continuum of friendships he had made and formed from the earliest days at St. Declan's.

    If, as is recorded in the letter of 8th June 2000 from the De La Salle addressed "To Whom It May Concern", it is consistent with the advice given on 23th May 2000 to the Clares by the De La Salle, who told them or advised the Clares that home tuition on a one-to-one basis would be most beneficial for Richard, the Clares had resolutely turned their face against this suggested solution, so much so that they ignored the first home tuition form sent to them. The same fate befell a second such form. while the system then in place in 2000 was that if the Department sanctioned such arrangements, it was the parents' task initially to find teachers and pay them and such fees then would be recouped by the Department. while this somewhat cumbersome and unattractive system of payment is almost an understandable universal principle of operation in most public services, it was unreal in the circumstances. Mrs. Clare said they could not afford to pay teachers, but there was no evidence of what resources in exact monetary terms were available to pay teachers or what it would have cost. In my judgment, this issue is not relevant to the case because Mrs. Clare was simply not going to accept home tuition even as a possible interim solution. She considered she had advice to this effect because of the possible isolation of Richard, which was and is quite understandable.

    Parallel with Mr. O'Muiri's discreet visits, enquiries and efforts, activities were being carried on at a different level. The solicitor's initial letter to the Defendants is dated 21st September 2000. Mrs. Clare also wrote directly to the firstnamed Defendant by letter dated 27th September 2000, indicating her wish to appeal under section 29 of the Education Act 1998 against the decision of the Board of Management of De La Salle school. That section was as at that date not operative or brought into operation. The fact that the back-up structures were not in place seems to have delayed the coming into effect of the section, but I am not prepared to make a finding of negligence for failure to bring the section into effect before the support mechanisms for appeal were in place. This letter, unknown to the Department, was in fact drafted by the solicitors, a fact that was not disclosed to the Department. I accept there was no obligation on Mrs. Clare to so do. Mrs. Clare, through an ADHD support group in Waterford (which by December 2003 had some ten to fifteen parents), ascertained that a Ms. Jackson, who was a qualified retired teacher, ran a project called Excel which provided tuition for children who had been expelled out of school or had left school. While the project was not recognised by the Department, apparently, Ms. Jackson's enterprise was teaching the junior Certificate curriculum, but the responsibility to attend was that of the pupils and/or of their parents. No homework was prescribed at this project.

    Richard was at the Excel project from some time in October/November 2000 until February 2001, when the matter came before the court. However, in mid November 2000, I am satisfied that the Department, as an interim measure, did contact Mrs. Clare by letter dated 14th November 2000, and that there was another telephone call her on 16th November 2000 concerning home tuition. Amongst the several questions asked by Mrs. Clare was who initiated the notion that they would accept home tuition and she also wanted to know if the tuition would be in the family home and would the Department pay for the oil to heat the house. The Department was again in communication later on 6th and 19th December 2000. While Mr. O'Muiri was quietly working away, the Plaintiff's solicitors were pressing on with the litigation which was initiated by plenary summons (which issued from the Central office of the High Court on 24th October 2000) and in respect of which the first, third and fourth Defendants entered an Appearance on 22nd November and the second Defendant entered an Appearance on 11th December 2000. A Notice of Motion dated 9th November, grounded on an affidavit of 8th November 2000, was returnable for 27th November 2000. This motion was adjourned on a number of occasions. When the matter did come before the court in February 2001, a form of consent was entered into between the parties and an order in the terms of the consent was made. The consent provides as follows:

    "The Plaintiff's application for an interlocutory injunction has been compromised by the parties in the following terms:
    l. The first-named Defendant undertakes to provide a classroom at 'St. Joseph's & St. Benildus Parish Hall), Waterford, for
    Richard Clare and another pupil on or before 9th February 2001.
    2. The first-named Defendant will provide twenty hours teaching each week of the school term in all Junior Certificate
    subjects by teachers from De La Salle, other than three named teachers as agreed between counsel. The Plaintiff and next friend appreciate that some facilities available in a mainstream school cannot be replicated in a temporary classroom.
    3. During the period during which the Plaintiff is receiving tuition in the said classroom, his next friend agrees to the
    Plaintiff undergoing psychological and educational assessment by Anne Cranley in conjunction with and with the co-operation of Dr. Victor O'Loughlin and NEPS Dept. Psychological Service.
    4. At the end of the academic year 2000/2001 the first-named Defendant will draw up an IEP to identify the appropriate mainstream
    secondary school and will use its best endeavours to place the Plaintiff in the school.
    5. In the event of that school being a fee paying school, the first-named Defendant agrees to discharge the fees.
    6. The first and second-named Defendants will ensure that Dr. O'Loughlin and any other experts dealing with the case will advise
    all of the teachers referred to in paragraph 2 hereof with regard to the Plaintiff's condition, and the other experts, his educational requirements.
    7. The second-named Defendant undertakes to provide a new family support worker for two ours twice a week as respite, with specific times to be agreed.
    8. The second-named defendant undertakes to make further efforts and to use their best endeavours to find suitable foster parents for respite care.
    9. The Plaintiff's next friend undertakes to co-operate and adhere with a behavioural management programme which shall be prepared by the second-named Defendant in conjunction with Dr. O'Loughlin."

    A liberty to apply and reservation of costs form part of the order.

    While Mrs. Clare may have been frustrated that it took so long to find the temporary solution, if she or the school had moved three months earlier, ie, between March and June 2000, matters might have been different, because that was within the period of the school year. Equally so, there was certainly some hiatus in the Department between 29th June 2000 and 16th August 2000, to which I will refer later.

    The suggestion was made in the course of the hearing that the solution of finding and funding of the facilities at the Parish Hall was brought about by the court proceedings that culminated in the Consent order of 2nd February 2001. I do not accept that submission as accurate. I am satisfied and find as a fact that the Department and its various responsible officers had addressed the situation quietly and with care. I accept that the Administrative section of the Department knew that legal proceedings were in being and about their progress, but that Mr. O'Muiri was not concerned with and had no concern for the litigation. His concern was to try to find accommodation and teachers for Richard. I am satisfied to find the facts to be as sworn to by Breda Forde [T7 (11/12/03) p40/1 Q190/191], the matters were in place in January 2001 before the court hearing.

    Schooling at the Parish Hall

    Richard was driven to and from school (including at lunch time), it seems usually by Mrs. Clare. If a teacher who was teaching in the De La Salle (and it is to be noted the Parish Hall is quite near De La Salle School) was late in transferring from one building to the other, Mrs. Clare apparently kept a record of such event [T5 (11/12/03) p115 14-6]. She did complain that teachers were late arriving in the mornings [T5 (11/12/03) p115 Q392 127-28] and her solicitor wrote recording this complaint on 23rd May 2001. Within a month of beginning school at the Parish Hall additional hours of tuition were added by the Department for Richard.

    The Consent dated Friday, 2nd February 2001 was followed by a solicitor's letter of 5th February, to which the Chief State Solicitor responded by letter of 8th February, enclosing a timetable involving seven teachers for Richard.

    A Ms. Anne Cranley was nominated to carry out an assessment referred to in paragraph (3) of the Consent. There were some logistical difficulties in organising this assessment, but I am satisfied there was no failure to attend to the matter as promptly as was practicable. Ms. Cranley's first report is dated 7th May 2001, and is related to the facts as she found them on her assessment on 27th April 2001. (She made two further reports on 3rd November 2001 and 6th October 2003, each related to the facts as she found them on the information she had on those dates.)

    Notwithstanding that the Consent of 2nd February 2001 provided that at the end of the academic year of 2000/2001 the first-named Defendant was to draw up an IEP (Independent Education Programme), the Plaintiff's solicitor was enquiring on 28th February 2001 as to the progress of this and identifying an appropriate school for the Plaintiff commencing 2001.

    I appreciate the concern of the Clares that if Richard was successful in his Junior Certificate, then (a) a school would be required to be identified, and (b) depending on the subjects available and chosen and the anticipated rate of covering the course and an assessment as to Richard's capacity to achieve a chosen programme, these matters would be in place at the outset or very early in the academic year 2001/2002. However, until at least the school and subjects were known, it was wholly unreasonable to be looking for a progress report as early as 28th February 2001, or indeed 23rd May of that year.

    In the period February 2001 to dune 2001, there was a teachers strike during which Mrs. Clare telephoned a complaint to the Department that Richard was not receiving tuition [T7 (11/12/03) p44/5 Q207]. By 20th March 2001, Professor Mace had been engaged by Mrs. Clare to advise in relation to the education that had been and was being provided to Richard.

    In June 2001, the school year ended. Special arrangements were made to enable Richard to sit his public examination. Richard was a successful candidate in the junior Certificate Examination and Mrs. Clare was extremely happy that he did so well [T3 (4/12/03) p119 Q555 124].

    The search for a School in 2001

    In late April/early Mary 2001, Mr. O'Muiri had made efforts, but unsuccessfully, to find a mainstream school that would accept Richard. An acrimonious correspondence issued from the Plaintiff's solicitors, beginning on 1st June 2001, and in the months of duly and August the efforts of the first Defendant to secure a school willing to accept Richard were indicated. Joan Williams (who succeeded Mr. O'Muiri) had been in direct contact with the Clares who wished to have Richard re-admitted to De La Salle. However forlorn this hope might be or whatever realism there was in such a prospect, in deference to those wishes time and effort was devoted to this, but without success. Ms. Williams' concern was Richard's welfare and notwithstanding the tone and tenor of the letters from the Plaintiff's solicitors of 7th and 17th September 2001, I do not accept that the Department were unwilling to apply effort and resources to finding an appropriate school for Richard. Joining De La Salle as a third party to litigation was not, in my judgment, any form of solution. They were not a party to the litigation and were not called to give evidence. I desist from expressing any view on how they manage their school or whatever policy they in fact adopt.

    Added to the background difficulties already recorded in this judgment was the fact that Mrs. Clare had objected to three teachers in the Consent of 2nd February 2001 (of which they were personally unaware at the time, though the school was, and they were irate when they realised this). Other teachers knew that Mrs. Clare had complained them to the De La Salle on occasions of being late (the number of occasions or the duration of the lateness was not given in evidence) [T7 (11/12/03) p45/56].

    Ms. Williams eventually found a place for Richard in the vocational School in Mooncoin by early September, but the Clares' resistance to this delayed Richard's entrance to it. In the events, I am satisfied it was a singular insight on Mrs. Williams' part to make this choice.

    Before, however, proceeding to consider the period of schooling in Mooncoin, it is necessary to return to certain facts that occurred in the Summer of 2001. While I am satisfied that the Department were not aware of the crisis that had arisen between the Clares and the De La Salle in March 2000 until about mid June 2000, three months later, the matter was known to the Department in mid June 2001. Between 8th June and 29th June, the communications -- home tuition form, a phone call between Ms. Clare and

    Ms. Lennon [T7 (11/12/03) p55 Q249 121-25] –

    indicated that Mrs. Clare did not want home tuition.

    As a result of public service industrial action, there was a backlog of dealing with political representations extant as at the end of the June 2001.

    Once it was clear that home tuition was being rejected, the person then dealing with the issue, a Ms. Michelle Kavanagh, sent the matter to Mr. Tom Donaghue, the Senior Psychologist (Mr. O'Muiri's involvement is dealt with elsewhere in this judgment), because of the reports of Ms. Siobhan Reddy and Dr. O'Loughlin. Mr. Donaghue liaised with a Ms. Tyrrell, who was then the psychologist for De La Salle, with a view to resolving the matter. This, however, necessitated setting up a meeting with De La Salle during the school holidays and this was clearly causing difficulties when staff were on holidays. The inferential suggestion that matters were left to drift without concern between 29th dune and well into mid to late August is not warranted. Ms. Tyrrell thought, as is clear from the evidence, though she herself did not give evidence, that if extra hours were offered to De La Salle such might provide a solution.

    Ms. Forde, when giving evidence, indicated that so far as she was aware there were no actual structures in place in the Department during the Summer period, particularly in the month of July and the first half of August when the schools are closed and principals are generally on holiday.

    In mid 2001, there was no early warning system in the Department so that the Department got to know of potential expulsions before the event, but legislation since (the Education welfare Act) does create an onus or duty on schools to inform the Education welfare Board. In and around the relevant time, June/September 2001, there was no legal duty on schools to notify the Department of their intentions to expel a student, and unless the Department obtained information from a social worker, he or she having knowledge of the same, it would not know of intended expulsions. It is also clear that the Department did not liaise with Health Boards to ascertain if Health Boards may or might have information that would be of interest to the Department. while Ms. Tyrrell's recommendation was that the Clares be informed immediately that action was being taken to help their son was not carried out, I had the evidence of Mr. O'Muiri, whose position I understand, and I had not evidence from Ms. Tyrrell of what (if anything) she knew of

    Mr. O'Muiri's contact with Mrs. Clare.

    While the structures, or the want of structures, of a particular form or kind in the Department in mid 2001 may be the subject of opinion, its or their absence did not per se affect matters, because a school, which, in my opinion and judgment on the evidence, was both suitable and appropriate for Richard had been sourced or located by early September 2001. Notwithstanding the criticisms made concerning an appropriate mainstream school in 2001, I find as a fact on the evidence that the Department used its best endeavours to do so.

    While Ms. Forde was asked a number of questions outside her range of duties, she accepted that if a meeting between the Department and the De La Salle could have been organised before the Board of Management meeting that led to formal expulsion, it might have been advantageous, and the Department does not appear on Ms. Forde's evidence to have contacted De La Salle in advance of the meeting. However, I am satisfied from Mr. O'Muiri's evidence that he did and I found him to be realistic about his encounter. Equally so, I am satisfied from the evidence as a whole that the De La Salle did not wish to interrupt the flow of their line of determination to the Board of Management meeting.

    In my judgment, the time, money and effort that went into trying to persuade, force, cajole, or any other expression one may care to use, the De La Salle to continue with Richard from 15th March, and certainly June 2000 onwards, was futile. Mindful that De La Salle are not a party to this action, the fact that they wrote letters, had meetings, referred to hours, resources, trained teachers, could not cloud the history between the school and Richard and the school and the Clares. To think that a school in which there had been an ASTI (teachers) strike in February/June 2001, where three teachers learned of Ms. Clare's exclusion of them from teaching (in the Consent of February 2001), and her complaints about teachers at the Parish Hall [T7 (11/12/03 p128/9 Q548], was in any way disposed to refrain from formal expulsion is, in my opinion, completely unrealistic. The Department tried this course because of the Clares' persistence, and entitlement to be persistent as they considered it reasonable, in pursuing that course. I cannot and do not make a judgment that the De La Salle were engaging in a total disengagement strategy under the guise of the letters written -- but it is an opinion not difficult to understand or come to. Ms. Williams had the impression sometime before the meeting of 6th September 2001 that the De La Salle would not take Richard back. Asked if

    Mr. O'Mahony said anything that created that impression, she replied:-

    "A. He, he did mention the difficulties they had with the mother.
    J. Yes.
    A. And also did mention to me the naming of the two teachers or the three teachers -was it in the February hearing? He, he
    felt that there was huge anger within the Board of Management about that."
    [TS (12/12/03 p55/56 Q24/30; 11-16]

    what (if anything) the De La Salle may have known or got to know of the Clares' political representations at local or national level cannot be ascertained from the evidence, or how it did or did not affect their disposition. In my judgment, taking the evidence as a whole, there was little or no real likelihood of Richard being kept in the De La Salle in September 2000, and even less in September 2001.

    In response to the enquiry on this hope or possibility of having Richard re-admitted to De La Salle, Ms. Forde's evidence was:

    "You see, for the twenty hours, which is very intensive for any child on one-to-one, Richard's behaviour never seemed to be a problem in [sic] the De La Salle. The only time, the only complaint we had that was from De La Salle was in relation to Mrs. Clare. So on that basis, we were hopeful that they might take Richard back, because maybe his behaviour wasn't such a problem as they thought it was, and also we had assured them that whatever resources were necessary would be given to them." [T7 (11/12/03 p124 13-11]

    This is clearly referable to the period of twenty-two hours per week in the Parish Hall and the word "in" should clearly read "for". I am satisfied and find as a fact that Ms. Forde's honest belief was that Mr. Pat O'Mahony, Assistant Principal of the De La Salle, first floated the idea to the Department, that if they had a resource unit for special case students, maybe the Board would take Richard back. The understanding that the initial idea came from Mr. O'Mahony is confirmed by Ms. Williams' evidence [T8 (12/12/03) Q97 118]. Although the initiator of the idea was Mr. O'Mahony and not the Department, and this accords with the evidence of Ms. Williams [T7 (11/12/03) p152], it is not a matter of moment who thought of the original idea, it was being used as a bait or lever mechanism to get Richard back into the De La Salle [T8 (12/12/03) p5, 115-19]. The idea was not followed through by the De La Salle in a manner capable of achieving the possible re-admission of Richard to De La Salle. I am satisfied and find as a fact that the De La Salle were told at a meeting on 6th September 2001 that the necessary resources could be made available if they took Richard back in September 2001 [T7 (11/12/03 p133 Q559/560 126-30; p135 Q566 116-17]. This matter is referred to also in other evidence.

    After Mr. O'Muiri retired from the Inspectorate on 4th May 2001, he was succeeded by Ms. Joan Williams, who was appointed on 10th June 2001. She was immediately in possession of the Consent of 2nd February 2001, and Anne Cranley's report of 7th May 2001. She discussed the matter with her immediate manager, Mr. Tadgh O'Siochain (who had also been Mr. O'Muiri's immediate manager). Ms. Williams, having ascertained the facts as then known in the Department from Ms. Geraldine O'Gorman, began immediately to seek a school for Richard. she began with St. Paul's, but had no success. She then tried Mount Sion, Waterpark, the Abbey Community school in Ferrybank, and having tried all the boys and mixed sex schools in Waterford she then made enquiries in the private schools of Newtown and Yeates College. Having had no success over the period of three/four weeks, Ms. Williams had hoped to meet Mrs. Clare on 16th July. She, herself, had certain commitments, but Mrs. Clare could not be available at the times Ms. Williams had available, so Ms. Williams eventually agreed and did meet the Clares in the Woodland Hotel on the Dunmore road, Waterford, between 11.00pm and 1.00am. Ms. Williams understood the frustrations of the Clares and thought their requirements fairly reasonable, but did appreciate that the Clares wanted Richard back in the De La Salle, and anything else would only be second best.

    I have no doubt Ms. Williams put the case for Richard forcefully to Mr. O'Mahony, the vice-principal of the De La Salle, from mid July onwards [T7 (11/12/03) p152/3 Q607].

    Before the meeting on 6th September 2001 between the Department and De La Salle, Ms. Williams, had a sense that effort with De La Salle might not yield the desired result and she had explored the possibility of Richard being accepted elsewhere -- in the Vocational School in Mooncoin. she had gone to Mooncoin on 3rd September, armed with Anne Cranley's

    report, and had a discussion with Mr. Thomas Walsh, the principal of the school. I am satisfied and find as a fact that there was at that time and at the date of hearing no meaningful distinction between mainstream secondary schools, community colleges and vocational schools, but there were differences of management and trusteeship [T8 (12/12/03) p8/9 Q12/14]. Ms. Williams was satisfied then, as I find to be a fact on the evidence, that the ethos of the school was a caring one and was very capable of meeting Richard's academic needs. Arrangements were made by Ms. Williams (because Mrs. Clare was not available) to bring Richard to meet Mr. Walsh, the principal, who gave evidence (and was a most impressive witness). Before setting out on the journey to Mooncoin, Mrs. Clare mentioned to

    Ms. Williams that Richard "may not talk on the way out". Ms. Williams found Richard interesting and animated in conversation, with views on drama and political matters. Ms. Williams got a positive response from Richard's reaction to Mr. Walsh, but when Richard was asked could he see himself going to the school, Ms. Williams continued her answer thus:

    "I suppose I was saddened by the response, I must say, and it has lived with me. But again, I didn't pursue it and I didn't dig. He just said 'Yeah, I could, I could probably go there
    all right'. But he said -- he went on about not being his own person and he made -- he expressed to me, exactly what he said I think was that 'Mam has her little ways'. Okay, which any teenager can say and he said 'As long as I am depending on her for a roof over my head, I'll probably have to do what I'm
    told'. Okay, reasonable comment probably from a fifteen-year-old. He was fifteen at the time." [T8 (12/12/03) p13 Q23 126-30, 11-6]

    While a dispute arose concerning this evidence, I am satisfied it was truthful evidence given without prompting and also accords with evidence of

    Dr. O'Loughlin's evidence on giving Richard autonomy (important for both health and happiness) or space, as wells Ms. Williams' following evidence when she reported on the visit to Mrs. Clare.

    A meeting was arranged in Mooncoin between the Clares and Mr. Walsh, with Ms. Williams present. I am satisfied and find as a fact, contrary to the clear prejudicial impression I was left under by

    Mrs. Clare's evidence, that Mr. Walsh expected the Clares and he was not late for the meeting [78 (12/12/03 p17 Q27 14-9]. Notwithstanding that Richard had no school to go to, Mrs. Clare telephoned Ms. Williams on 18th September stating she would not accept the school placement and that she was putting the matter back in the hands of her solicitor.

    Ms. Williams swore an affidavit on 17th October 2001. McCracken J, before whom the matter came for hearing, made it clear he was not in a position to force any school to take a child, that Richard was better in school than at home. Eventually, Mrs. Clare accepted that position and the necessary supports, reportsand plans were completed to enable Richard to attend Mooncoin. Ms. Williams' involvement ceased about 22nd November 2001. I find as a fact that Ms. Williams and the Department would have set about their task of trying to resolve Richard Clare's schooling/educational problems with the same degree of dedication irrespective of the background of litigation [T8 (12/12/03) p24/26 Q/A57].

    Before the matter was ever returned to court in October/November 2001, Mr. Walsh records, on Ms. Williams first visit to him, the following concerning resources:

    "Well, again it was Ms. Williams said to me, that she really summed what was available in resources from the Department to me and I remember her making the comment 'You could look for anything and you would probably get it from the Department in this particular case'."
    [T8 (12/12/03) p64 Q184 110-14]
    At Mooncoin

    Mr. Walsh, the principal, was not just "clearly a very nice man", as described by the Plaintiff's solicitors in correspondence. I found him to have a calm dignity, he was courteous, fair in all his evidence, and very caring and concerned for Richard's welfare. He had consulted the staff to have their support even before meeting Richard's parents. I am satisfied that under his authority and management the Plaintiff's needs were met and that Richard did fit in over time in Mooncoin, and that from the outset both the Department and the school gave thought to the placement.

    Mr. Walsh considered that had there been an acceptance of the placement, Richard could have been in school by the end of September of that year [T8 (12/12/03) p67 Q200 110-11] rather than, as events turned out, on 26th November 2001, after being to court. Notwithstanding the non-acceptance of the placement by the Clares initially, preparations continued to be made to receive Richard. A mentor, special needs assistant and liaison teacher were chosen and introduced to the Clares when they did consent to send Richard to school prior to his going to the school.

    Mr. Walsh's pragmatism and absence of absolutist positions ensured a sympathetic and sensible, as well as a sensitive, introduction to the school. Richard was not the first ADHD student to attend Mooncoin, by the time of the hearing there were six such studentsin Mooncoin.

    Shortly after going to Mooncoin, there was a day trip to Dublin. Mr. Walsh considered this was a turning point, really, as regards socialisation by Richard [T8 (12/12/03) p72 112-14]. The parents of the pupils were required to sign a form as to whether a pupil is to be supervised or unsupervised during the luncheon interval on the trip. In Richard's case, the form was returned by his parents indicating that Richard was to be supervised. when the lunchtime came, Richard sought to go off with his companions but he was called back by the special needs assistant and the teacher. The difficulty of being told in front of his peers that he could not go off on his own with them unsupervised but had to be supervised led him to became agitated and it was reported to

    Mr. Walsh:

    "He did make a comment that, you know, his mother was influencing him again and influencing whether he should have friends or not, some words to that effect."
    [T8 (12/12/03) p73 12-21; p74 17-9]

    Later that day Richard was left isolated by his companions. A short time after Richard was reprimanded for an inappropriate comment to a female student and Mr. Walsh considered Richard decided to stay away from the students. Mr. Walsh noted that Richard tended not to socialise at all. I am satisfied that he [Mr. Walsh] and the staff made genuine efforts to get him to socialise, but it had been difficult because of Richard's own reluctance to trust himself with others. Mr. Walsh is clearly a teacher who can be firm, as can his staff, but he is not autocratic and is prepared to respect the pupils as young persons, not as infants to be all the time told what to do and when to do it. when Ms. Hogan, the mentor, tried to encourage him to go out and mix, Richard said "My mother said I don't have to go out if I don't want to go out". Ms. Hogan checked this out with Mrs. Clare, whose response was "Yes, you know, you can't really make him". Yet, the staff in the school felt under a certain amount of pressure from Richard's parents, that they wished him to socialise [T8 (12/12/03) p78 Q230/231 19-30, 1].

    One of the complaints made by the Plaintiff is that an IEP was not prepared, prepared in time, was inadequate, merely set out the syllabus. Mr. Walsh dealt with this in his evidence and I am satisfied that a genuine and bona fide effort was made for Richard in this regard. It clearly did not pass muster with Professor Mace. It may lack an abundance of detail required or desired in other jurisdictions, but it is clear, and I am prepared to accept, the specific IEP put before the court was appropriate and adequate for Richard's needs as understood by those who had first hand knowledge in school and first hand knowledge of both the course and Richard (inter alia Mr. Gregory's evidence [T10 (17/12/03) p61 Q154 et seq]). Again, much criticism is leveled at Richard's schooling, when a serious part of his problem is that he is not a particularly good examination candidate and technique for this purpose has been introduced to his schooling. One of the most revealing insights as to the manner of man, as well as student, Richard was in September 2003, when almost seventeen-and-a-halfyears old and three months before the hearing, is to be found [T8 (12/12/03) p81/85 Q246/252], it is an explanation given by Richard as to his failure to deal adequately with an English examination arising from queries on the text of 'Wuthering Heights'. It is articulate, clear, humourous, insightful and devoid of self pity [see also evidence at

    T8 (12/12/03 p131 Q476 L3-7; p139/140 Q510 118-30, 11-11] .

    In the course of cross-examination, Mr. Walsh was asked about a recommendation in the first of Ann Cranley's reports (and she admitted or stated in evidence that they were not written in stone and were date and circumstance related), that there was no effective individual behavioural programme.

    Mr. Walsh accepted that there was no written document, but I am satisfied and find as a fact that fair and firm guidance was available and applied at all material times. Richard was a human being in the process of development. Mr. Walsh's evidence on this and cognate matter is to be read in conjunction with the evidence of Mrs. Clare, Professor Mace, Ms. Cranley and Mr. O'Loughlin, and on a conspectus view of that evidence I am satisfied and find as a fact that, in fact, but perhaps not in accordance with a theory, the support given to Richard was in substance that advised by the psychiatrists and psychologists. At the outset of the school year 2003/2004, three months before the trial, Mr. Walsh said that Richard "was under extreme pressure from home" [78 12/12/03 p133 Q491 117], an adjusted study/homework programme was revised as a result of an interdisciplinary meeting. It is not a case of plundering along; it was a case of making prudent and appropriate adjustments as circumstances warranted for an individual student. While Mr. Walsh had gradually over time brought Richard back to mainstream education and reintegration into classes, and having done so, it appears that in August 2003 Mrs. Clare was then seeking one-to-one tuition, which does not sit in easily with integration in class. One illustration of the extent to which Mr. Walsh and his staff in Mooncoin tried to assist Richard on an individual basis is that when Richard went to Mooncoin, history was not taught as a subject, the

    Clares wished Richard to be taught history, so a special class was set up for that purpose.

    Educationalists/psychologists/psychiatrists

    Professor Mace, Ms. Cranley, Dr. O'Loughlin and Mr. Gregory gave evidence; they spoke not only to their reports, but to their personal experience of meeting with and in the context in which they met Richard and Mr. and Mrs. Clare and others. It is clear from Dr. O'Loughlin's evidence and other evidence that only in 1995-1999 did the matter of knowledge of ADHD in Ireland evolve to any appreciable extent, particularly towards the end of that period.

    Professor Mace, whose continually funded research, noted that the "research had been in the area of self-control and self management, which is particularly relevant subject to the behavioural treatment of ADHD". His evidence is that ADHD is a neurodevelopmental disorder, that it relates to the central nervous system and manifests itself over time; it is a diagnostic classification of a mental disorder that is widely considered to be a brain disorder. He stated that the symptoms usually begin at age three, and while they can be accommodated in an unstructured home environment, but that when the structure that a school tries to impose on the child, that is when ADHD usually comes to the attention of adults who are caring for the child. Normally, when a child does not adapt well to a school structure (of which there was no evidence of a failure on Richard's part most of the time), it comes to peoples' attention that there is a problem. Professor Mace averred "the symptoms tend to worsen until they get to a peak at around age twelve, and then normally lessen, particularly the hyperactivity portion of the disorder, into adolescence" [T1 (12/12/03) p13 Q50 19-13]. Professor Mace said that for over half who are afflicted with ADHD the problems do not continue into adulthood, and research is rather early in its development so it is not really clear how many children go on to adults and carry on with this problem [T1 (12/12/03) p13 Q51 120-26].

    The evidence of Professor Mace was that ADHD has a neurological basis and its significance is that it is not something that is open to volitional control and it has a physical basis. The consequences of ADHD are that it affects four areas of executive cognitive functioning that are considered to be a

    prerequisite for self-regulation. These are:

    (i) Problems with working memory, both verbal and non verbal;
    (ii) Problems with verbal fluency (this is one area Richard was not lacking in);
    (iii) Problems with reconstitution (of which Dr. V. O'Loughlin gave evidence, to which I shall return to later in this judgment); and
    (iv) Problems with the inhibition of impulses.

    It is unnecessary to record at any further length the details of the evidence on these and kindred matters touching on ADHD. In 1998, there was what was referred to as a consensus conference of National Institutes for Health which expressed the view that ADHD is a neurological disorder. Studies in the 1950's and 1960's advanced knowledge of ADHD and its treatment by medication. Medication in conjunction with behavioural treatments targeting (1) the child, (2) practices in the school, and (3) practices in the home may be an effective method of dealing with ADHD. The evidence on the elements of practice was too fragmentary for me to come to any concluded view as to how, if it did, affect Richard. likewise, I have no or no reliable evidence that I feel confident I can rely upon that whatever structure to manage behaviour in the classroom was consistent with the parents doing the same at home.

    Professor Mace described ADHD as "a chronic condition", it is not something that occurs temporarily, you cannot have a six-month bout of ADHD. If it is not dealt with properly from the outset, the condition tends to worsen, and particularly the benefits that derive from education are not realised. His view was that the longer you go without intervening with it to contain theses symptoms and allow the child to engage in the educational programme, the greater are the deficits in performance over time. He stated that it was widely considered to be a highly debilitating condition. He said it leads to significant deficits in academic performance, in social relationships and vocational development [T1 (2/12/03) p23 Q72/73 16 -21].

    Notwithstanding Professor Mace's pre-eminence in his profession and his command of a vocabulary to express his learning and expertise, where it comes to a conflict with his evidence (for he only met Richard on two occasions, once in December 2002, and the other, the day before he gave evidence in the court in December 2003) and the evidence of those who had dealings with Richard over the years (and, in particular, Dr. O'Loughlin who had met, advised and was confidante of Richard for some fifty visits over a period of years), I prefer the evidence of such persons who knew Richard over time. Theirs is not an ex post facto appreciation of others' experiences, but a factual experience of their own. This is not to say that I ignore or discount the evidence of Professor Mace.

    while Professor Mace was perfectly entitled to take his brief "cold", ie, without reference to, or concerning himself, with the psychotherapy which Richard had received from Dr. O'Loughlin, or, indeed, to consult with him, he was clearly not given all the facts or given some accurately. I am not called upon to decide on preferable professional theories.

    When Dr. O'Loughlin first met Richard by special arrangement on 7th September 1999, he felt a diagnosis of ADHD of a moderate degree was warranted [T11 (18/12/03) p 7 Q240]. He noted there were other issues, as well, and oppositional behaviour.

    Dr. O'Loughlin, prior to giving evidence, had read Mrs. Clare's evidence and stated that he "picked up a more intense level of difficulties going right back" than he had found to be the case, in fact [T11 (18/12/03) p72 Q425]. This is important evidence, for I had a concern with Mrs. Clare's evidence, which, having followed Professor Mace's description of ADHD in ages three to twelve and thereafter, seemed as if the dovetailing had arisen from a belief arising from a constant consideration rather than a narrative of factual experience. This, of course, does not mean that Richard did not have ADHD in a "mild" (Ms. Reddy) or a moderate (Dr. O'Loughlin) form, but Dr. O'Loughlin knew the symptoms were not severe [T11 (18/12/03) p75 Q246]. I am satisfied that Dr. O'Loughlin made it clear that it is important for parents not to be reacting the whole time and to focus on the positives of the child or adolescent with ADHD who demand a lot of attention [T11 (18/12/03) p68 Q209/210].

    In November 1999 a meeting was organised through Dr. O'Loughlin with the De La Salle (Principal, Vice Principal and Year Master). The non-compliance by Richard in ingesting medication and the incidents in January and May 2000 were related by Dr. O'Loughlin. while conscious of the duties of the Defendants and their officers, there is a level of personal and parental responsibility, an area into which the nanny state ought not to transgress. If an adolescent "hoodwinks" his parents or teachers about swallowing pills [cheeking T11 (18/12/03) p 89/90 Q 306/308], their commonsense, altogether from the direction on the prescription, cannot ensure their consumption. I do not accept there is a failure of the Defendants in their responsibilities under the Constitution or statutes in not providing the parents or teachers with a course of instruction on how to administer pills and ensure their consumption. Richard was resentful of being on medication and people trying to control him. I am satisfied and find as a fact that Dr. O'Loughlin discussed with Mrs. Clare about the supervision of medication and that the parents should speak to Richard about the medication [T11 (18/12/03) p83 Q274/5; p89 Q304]. Where the evidence on this and any other material issue differs as between that of Mrs. Clare and Dr. O'Loughlin, I prefer the evidence of Dr. O'Loughlin as more reliable.

    Dr. O'Loughlin realised in the first half of 2000 that things were "difficult at home and at school, but particularly at home. Richard was becoming quite irritable and oppositional ... and Mrs. Clare was very distressed about what was going on" [T11 (18/12/03) p84/85 Q281]. To alleviate this situation, Dr. O'Loughlin organised for Noreen Dunne, a social worker with experience in conducting behavioural management groups, to assist and liaise with Mrs. Clare. Mrs. Clare telephoned Dr. O'Loughlin after the first visit to inform him that she did not get on with Noreen Dunne. AMs. Geraldine O'Gorman was then found as a support for the family. she was an experienced social worker with the Health Board and on the child psychiatry team. Her range of skills and function was to provide a behavioural management programme in another guise. In March 2000, Dr. O'Loughlin had sought the assistance of Siobhan Reddy in case there were underlying specific learning difficulties -- there were to a mild degree. Dr. O'Loughlin found, even in 2000, when Richard was fourteen, that he was well able to answer for himself [T11 (18/12/03) p38 Q/A - end of page] I accept Dr. O'Loughlin's evidence that Richard never had a conduct disorder (T11 p101 Q364). This generally accords with the evidence of Professor Mace. Richard has not been on medication since May 2000 (total period on medication, November 1999 to May 2000, six months). There was a significant improvement in Richard's ADHD symptoms in about summer 2001. Later, when he went to the welcoming atmosphere of Mooncoin, he started to improve clinically. Dr. O'Loughlin's evidence, which I accept, is that a person with ADHD improves; the symptoms do not go away completely, but they go to a subclinical threshold.

    In Dr. O'Loughlin's opinion, by summer 2001, after or about the time of the Junior Certificate, or its results, Richard began to have some self-knowledge and how to exercise some element of self control, he was maturing. Dr. O'Loughlin's relationship with Richard was psychotherapeutic, he was also his confidante [T12 (19/12/03) p35 Q/A 12-12].

    Over a period of December 2002 to March 2003,

    Dr. O'Loughlin sought to come to a view as to where Richard "stood" in relation to the ADHD symptoms revealed in September 1999. The conclusion he came to was set out in a report of March 2003, handed into Court in evidence. The conclusions he came to were that:

    "Richard's symptoms now of ADHD, while certainly they are apparent, and I think they are apparent at home, they are not pervasive enough to allow you to continue to make a diagnosis of ADHD. The term you would use is in partial remission. It does not mean that he has no problems, it just means that if he was to present now at a clinic and I was to assess him, I couldn't say this is ADHD as he is presenting at the moment. The likelihood is he did have it, but the symptoms have improved, but they are still there and there is a difference between home and school. I think my understanding of that would be that, you know, he is trying so hard at school. Okay, he is also maturing neurodevelopmentally, but he is tryingSo when he goes home, he does, maybe, let off. It is home, so, you know those things that he is trying to control and contain in school, you know, he let's off at home, so I think that is why there is that difference."

    He went on to say:

    "I wasn't expecting that Richard would have done as well, to be quite honest, when I saw him first in many ways."
    [T11 (18/12/03 p134/5 Q511/513]

    As the qualified person in this field who had known Richard longest and best, and known him most frequently, I find the facts to be in accordance with this evidence of Dr. O'Loughlin.

    Dr. O'Loughlin accepted that Professor Mace had sufficient time with Richard before giving evidence to form a symptom profile in which to do a clinical examination. It is common case that once ADHD has been diagnosed, assistance was necessary. The level of assistance, in my opinion, is to be related to the individual and the level of the ADHD. There is no constitutional or statutory imperative, in absolute fairness, in all and every circumstance, irrespective of circumstance. I accept Professor Mace's evidence that a student with ADHD would not have the same sort of education performance as one without ADHD, but the education performance of the ADHD student can be improved considerably [T1 p35 Q100 119-21]. I am satisfied this is exactly what happened Richard under the aegis of the Health Board and with the assistance of the first Defendant in and about the schooling of Richard, particularly at Mooncoin.

    Dr. O'Loughlin's involvement had ceased, as he saw it, in or about March 2003. He thought Richard had made progress and subject only to any necessity to refer back to him, Richard ought to be permitted to go forward with some degree of self-reliance and autonomy. When Dr. O'Loughlin was bringing his active involvement to a conclusion, Richard had improved, and improved dramatically, and when he met Richard and his parents at the time there was no suggestion that something more needed to be done, could be done or would be done. Accordingly, it was with some, perhaps, irritation that Dr. O'Loughlin later learned of some of the matters that were made the subject of complaint through the evidence of Professor Mace. I am satisfied, however, that whatever irritation there was did not in any way cloud his professional judgment or the objectivity or care with which he gave his evidence to the Court. I am satisfied and find as a fact that the true position of Richard's care and welfare is accurately and truthfully recorded in Dr. O'Loughlin's letter to Mr. Halpin, dated 25th June 2003, (a most important piece of evidence) and put in evidence to Professor Mace in cross-examination on 3rd December 2003, the concluding paragraph of which reads:

    "My concern always with Richard has been to encourage 'normalization' not 'pathologisation' (to repeat a phrase earlier). Richard has done very well. No doubt ongoing difficulties remain, which is not surprising given the nature of his condition and the consequences thereof. However, throwing therapies at him, to 'cure him', is not the answer at this stage and indeed risks, in my humble opinion, making matters worse by reinforcing in Richard's mind his 'difference', failures, denigrates his achievements so far and undermines his autonomy (he is now over 17 years of age).
    Again, should there be a genuine desire by Richard for ongoing psychological intervention/psychotherapy, this can of course be arranged. Richard and his parents can contact me and I will make the necessary referral to the appropriate local services, with Richard's consent."

    I am satisfied that this is a valid point of view. It is one that is considered in the contemporary literature on the matter (see - Therapy Culture - 'Cultivating Vulnerability in an Uncertain Age' by Frank Furedi) -- this work was not in evidence and is not evidence, nor do I in any way rely on it in making my determinations in this case.

    While Ms. Williams was speaking with Richard, she found that "he had a lovely, quirky analysis of the whole psychiatric services and of his own psychiatric experience that he had been through". when asked to elaborate on this by Ms. Williams said Richard "went on a little analysing where they find problems, I think perceive problems where probably problems didn't exist at all. I think was probably the line of his thinking" [T8 (12/12/03) p56/7 125-30, 1-3].

    One of the complaints made against the Defendants is that Richard had became somewhat isolated and wanting in socialisation. Mrs. Clare made complaint in September 2000, when Richard was expelled, that he became "depressed" and inflicted injury on himself by cutting his arm, whether from the shame of expulsion or the loss of the overall day-to-day interaction with his schoolmates, or for some other reason Richard may have been able to give to the Court. I am satisfied from the evidence of Dr. O'Loughlin that this self-inflicted injury was of a superficial character and there was no question of clinical depression. While respecting Mrs. Clare's view as to why it appears Richard became withdrawn [T3 (4/12/03) p110/11 Q528], Dr. O'Loughlin's professional view, and Mr. Thomas Walsh, Principal of Mooncoin, I find to be more reliable as being objective. I do not know if Richard's reading had included Jean Rhys (of "Wide Sargasso Sea" fame) who opined "when you are a child, you are yourself and you know and see everything. And then suddenly something happens and you stop being yourself. You become what others want you to be". From being talkative, impulsive and disruptive, it may have dawned on Richard that if he exercised some personal restraint and reserve, he could get into less trouble. He was a teenager who was trying to come to grips with a difficult and awkward development and life situation, and if he chose a course his parents or others might not approve of -- it may have made sense to him -- maybe it was an overreaction to his circumstances, maybe it was a defence mechanism [T10 17/12/03) p57 121; p128/132 Q396/415].

    Richard's reserved conduct, characterised as his social isolation, caused Mrs. Clare concern almost since the day Richard was sent home from the De La Salle in September 2000, and formally expelled by a decision of the Board approximately three weeks later.

    It is true that the psychologist attached or assigned in the Department to De La Salle, a Ms. Tyrrell, early in September 2000, had made a recommendation against home tuition because of the lack of opportunity of social contact. Much of the initial cross-examination of Mr. Walsh was directed at Richard's "socialisation". This was and at the time of trial is still a matter of concern to the parents and Mr. Walsh clearly would have wished Richard to have mixed and integrated to a greater extent than he, in fact, did with other students. Mr. Walsh tried to create circumstances where this would be made easy for Richard -- Mr. Walsh and his staff encouraged Richard to integrate. However, they were properly careful not to force the issue and they respected Richard's views. He was not an antisocial person in his conduct or attitude as far as can be fairly judged from the evidence as a whole. If he was on occasion asocial, it appears from the evidence that this was a coping mechanism. He was and is to be respected as an autonomous person and there is nothing inherently wrong in his education (mindful that he spends most of his time at home and not in school), because he was or is growing up in a manner that does not conform to the specifications or expectations of his parents or anybody else. while I have no evidence from Richard himself, I cannot know with any degree of probability how much of his failure in this regard, if it is a failure, is attributable (if any) to any of the following: ADHD, his home, his schools, his difficulties in growing up and his overall life experiences. whatever else it was, it was not want of resources, as expressed by Mr. Walsh:

    "well, I suppose in the school, in particular, you could say that no other student would have the resources allocated to them that Richard would have." [78 (12/12/03) p88 Q258 112-14]

    whatever Richard had reason to be distrustful or apprehensive about, it cannot have been Mooncoin, because he had Mr. Walsh's assurance that transgressions would not lead to expulsion. One method in which Richard dealt with his stated socialisation problem was by joining in an amateur drama group in the summers of 2001 and 2002.

    Dr. O'Loughlin noted (as did Mr. Walsh) that a time came when Richard's peers isolated him [T11 (18/12/03) p111/112 Q417]. It was a two-way exercise; it was not, in a sense, an inevitable consequence of having ADHD treated or untreated (as alleged).

    There is a serious difference of professional opinion between Professor Mace and Dr. O'Loughlin. Even as of March 2003, the perceived social problem was of significant concern to everyone involved in the exercise carried out from about the previous Christmas: Professor Mace considered Richard's conduct as indicative of a social phobia.

    Dr. O'Loughlin's opinion differed, for he considered "social phobia", by definition, to include social avoidance and social anxiety, but the important part of the diagnosis is that there an is excessive or irrational fear and it is perceived as such by the person. Dr. O'Loughlin's experience with Richard clearly did not convince him that Richard had any fear of mixing or socialising -- Richard was not frightened of socialising. Dr. O'Loughlin did agree with Professor Mace that if Richard had a social phobia, that cognitive behavioural therapy would be the psychological intervention of choice. However, Dr. O'Loughlin's opinion was that it would be wrong to inflict such intervention where there was not social phobia. It would not be warranted.(Ms. Cranley's evidence was substantially to the same effect [T9 (16/12/03) p126/128 Q278/287]). I accept and prefer Dr. O'Loughlin's evidence as logical and as more truly accords with the facts as I find them. Likewise, a difference of professional opinion existed between Professor Mace and Dr. O'Loughlin, in that Professor Mace contended that Richard had a skills deficit. Undoubtedly, Dr. O'Loughlin knew Richard much better and he thought Richard's social skills excellent. At one time Richard was impulsive and on occasion might resort to mannerisms, but I am satisfied that the preponderance of the evidence of those who knew Richard outside the home is of a young boy or person with social skills. His application of such skills, Dr. O'Loughlin did admit, may not always have been great. I am satisfied and find as a fact that he had not a deficit of social skills; that he can engage, if not always tactful, urbane or cooperative, that he can and does relate to people -- he does not appear to have a great deal of confidence in doing so. The inference I draw from the evidence is that Richard himself often chose to follow his own will as to whether to engage or not; it was not that he did not know how to do it or lack the social skills. Both at the interdisciplinary meeting held in Mooncoin on 24th March 2003 and 15th September 2003, the minutes or reports of which were called for in the cross-examination of Mr. Cahalane, indicate that these issues were addressed. The documents were handed in to court through the witness box, and are evidence. Dr. O'Loughlin did accept that notwithstanding an increasing sense of awareness and increasing maturity, Richard should receive support and encouragement to socialise. I am satisfied that he received both at all times from Mooncoin and from Mr. Boyce and Mr. P. Hogan, to the extent of the evidence put before the Court.

    The other issue in the case that arose was the provision of a foster care/respite care/family support person. In the Plaintiff's solicitor's initial letter of 21st September 2000, it is stated:

    "In May 2000, three weeks foster care was promised. This did not materialise. They were promised respite care. This did not materialise. Our clients were then promised a Family Support Person. Such a person was produced in August 20000, turned up one day, didn't turn up at the appointed place the next day and then disingenuously indicated that our client had been unavailable and has not turned up since. Richard has a number of difficulties which require support which you have an obligation under the Health Acts to provide and this has simply not occurred."

    This letter was directed to the second Defendant and these (other than the "support person") were in ease of the parents and for their benefit, rather than for Richard and his benefit, though perhaps indirectly for his benefit, and the absence of an express indication where in the legislation or delegated legislation these obligations are said to arise over and above a concept that the state must intervene or must come to the rescue of all persons for all purposes for which persons are unable or unwilling to resolve problems or difficulties for themselves, it is necessary to consider the evidence to establish the facts.

    Mrs. Clare, on being questioned on this issue relating to May 2000 by Mr. Sreenan in direct evidence, said:

    "I think when Richard was hospitalised, when he was in the Psychiatric unit in Waterford Regional Hospital, Geraldine O'Gorman did tell me that she would get foster care for us."
    [T3 (4/12/03) p95 Q475 126-28]

    The reason the foster care was not provided for at the time was not through indifference, as might be inferred from the solicitor's letter, but because no foster parents were available at the time, a fact known and averred to by Mrs. Clare in her evidence [T3 (4/12/03) p97 Q484 19].

    In the matter of family support, this issue seems, on Mrs. Clare's evidence [T3 (4/12/03) p63/64 Q391/396], to have arisen in July 2000 as a result of a suggestion of Ms. Geraldine O'Gorman, an officer with the Health Board. A male person (was preferred) would be allocated to Richard because Mrs. Clare said she needed a break from Richard. Mr. Richard Boyce (who gave evidence, which where it conflicts with the evidence of Mrs. Clare on any material particular, I prefer the evidence of Mr. Boyce as being more reliable) was the family support worker involved between July/August and 19th September 2000. I accept Mr. Boyce was late for one appointment by about fifteen minutes or thereabouts, but that he did not make a phone call on 19th September 2000, as stated and in the manner indicated by Mrs. Clare in evidence, but that Mrs. Clare told Mr. Boyce to leave the house and that she did not want him to work with Richard any more. I do not believe the evidence that Mrs. Clare gave concerning this incident at all. Clearly, her convenience had been discommoded and notwithstanding Mr. Boyce had a relationship with Richard that, on Mr. Boyce's evidence, was good and easy, it was severed by Mrs. Clare. I reject as inaccurate and not factual the statements made in the letter of 21st September 2000 in regard to the support worker. Richard said he was embarrassed by the incident with Mr. Boyce [711 p102 Q393 and Q397, per the evidence tendered to the Court by Dr. O'Loughlin].

    In terms of a family support worker, an interview with Mr. T. O'Neill (who did not give evidence) came to nothing. The only evidence on this is from

    Mrs. Clare. It is idle to speculate, therefore, what information (if any) Mr. O'Neill had before the meeting or where he might have (if he did) receive it or what his response, other than Mrs. Clare's evidence, he made at the interview with Mrs. Clare. Mr. Paul Hogan was subsequently found and he has proved satisfactory.

    As regards foster parents, when this was found, it was not continued because Richard (not surprisingly given that he was adopted) did not wish to be "farmed out", my expression, so that the parents could be free from him from time to time [T3 (4/12/03) p118 Q549/550].

    If I chose in this judgment not to treat at length the evidence of some witnesses, it is not because they are not important, but the evidence of Professor Mace and Ms. Cranley centred on their reports and Mr. Gregory's involvements and inputs are referred to by other witnesses. In Professor Mace's case, his interviewing of Richard, other than on a journey to Mooncoin by car, when he had a one-to-one encounter with Richard, was in the presence of Mrs. Clare and not even in the Clare home. Professor Mace explained his reasons for the location, but it was essentially an artificial setting in the circumstances.

    Ms. Cranley's first report was prepared interviewing Richard for the reason of assessment, but her later reports were not based on interviewing Richard.

    I am satisfied and find as a fact, in taking Ms. Cranley's evidence in conjunction with the other relevant issues which she addressed in her reports and evidence, that the recommendations made in her psychological reports and assessment have been appropriately implemented as Richard's needs evolved. Mr. Gregory's evidence has to be considered particularly in the context of the actual evidence given by Mrs. Clare and Professor Mace on the one hand and Mr. Walsh and Ms. Cranley on the other. The outcome of Mr. Gregory's contribution, advices and inputs are, in my judgment, to be considered against the improvements in Richard and supports that brought that about. Ms. Cranley's evidence on Richard's view for the future and a career [T10 (17/12/03) p46/48 Q120/124, and of Dr. O'Loughlin in T11] show the Richard that emerges from the evidence and the hopes genuinely, and I believe also realistically, expressed by Mr. Walsh are at variance from the Richard depicted in the evidence given for the Plaintiff, and I prefer the objective outside professional judgments of those whom have had most and longest over time dealings with or assisting or advising such persons, and I find on the material facts accordingly. I do accept Professor Mace's evidence that when he met Richard in December 2003, six months before his Leaving Certificate examination, he was anxious. That is not an unusual circumstance for a person with six months of their Leaving Certificate. He might have been more anxious than other students who did not have ADHD, and that other students' earlier reports may not have been as Richard's were.

    The Law and Legal Submissions

    In this case a considerable quantity of time, some three days, was devoted to legal submissions. I did have the advantage of several detailed and meticulous written submissions from counsel on both sides, for whose industry and care I am very much indebted. However, this is a case, in my view, that comes to be determined on its own facts. The law in respect of education of persons with disabilities has been recently and authoritatively considered and decided in the Supreme Court in Sinnott -v- The Minister for Education & Ors [2001] 2IR 545. It would be as impertinent as it would be redundant of me to offer a commentary on this and the related cases of O'Donaghue -v- The Minister for Health & Ors [1996] 2IR 20 and Crowley -v- Ireland [1980] IR 102. The instant case, in my judgment, is clearly distinguishable from the Sinnott case and both O'Donaghue and Crowley, not only on its facts but in the light of that decision -- Richard has received not only primary education but has completed (as of the date of this judgment) full post primary education and up to and including the hearing of this case I am satisfied and find as a fact, when considering all the evidence, as already noted, that Richard's educators at all times tried in earnest to meet his needs whilst having regard to the concerns and convictions of his parents. Furthermore, notwithstanding the disruptions that occurred in the course of his post primary education, the education given was effective in its delivery. Likewise, in making the arrangement in the Parish Hall and in Moincoin, such were a proper response by the Defendants to provide a "discrimination" in favour of Richard (bearing in mind section 4(4) of the Act of 2000 - Equal Status Act), that such is not to be considered as discrimination so as to ensure that he had a more than equitable opportunity to permit and facilitate in his realising his potential.

    In my judgment, De La Salle did not discriminate unfairly, unreasonably or at all (in the context of Section 7(1)(d) of the Act of 2000) in expelling Richard. The appeal mechanism of the 1998 Act was not in place at the time. Further, a period of three months notice of intention to follow a probable course elapsed before the action into which the De La Salle were challenged: the school was entitled to balance the rights of Richard and the other students in his (intended) class -- such, on the basis that the facts in the correspondence are true, is not discrimination (Section 7(4)(b) of the Act of 2000).

    I find as a matter of fact and of law that the Defendants were not and are not in breach of such constitutional obligations as they had to the Plaintiff; they acted in a manner that regarded the plaintiff's constitutional rights. Furthermore, there was not any breach of statutory duty of the statutes invoked or under the Convention as submitted.

    There is no evidence that Mrs. Clare ever conveyed to the authorities in any school what she said she was told by Ms. O'Connor about Richard. If Richard was as difficult or problematical as Mrs. Clare stated in evidence, this fact was deliberately withheld from the De La Salle because Mrs. Clare wished Richard to go the De La Salle with a clean slate, or that

    Mr. O'Mahony in St. Declan's or the teachers in the De La Salle should be faulted for failing to ascertain that Richard had ADHD. In my judgment, Mr. O'Mahony's judgment and response was, in all the circumstances, reasonable and responsible. It was only after Richard went to the De La Salle that an appreciation was arrived at over time that a problem, undisclosed to them at the time of Richard's being accepted as a pupil, existed -- true, the teachers did not appreciate that a problem existed or its nature and extent, but then neither did Mr. Richard Frank or Dr. McGovern, perhaps because it was a mild case of ADHD, as it was in September 1999 when a history and profile had built up that Dr. O'Loughlin diagnosed the condition or problem as ADHD. I find as a fact and as a matter of law that the support services and level and quality of education appropriate to Richard to meet his needs was provided to him. In my judgment, it is probable that had Mrs. Clare disclosed what she stated she was professionally advised by Ms. O'Connor to St. Declan's and disclosed that information, Mr. O'Mahony would have regard to such information and taken whatever course might have been appropriate had he been fully informed. The De La Salle were not informed that the advice of Mr. Richard Frank had been sought or that Richard had been taken to see him after he went to the De La Salle. It may very well be that had these schools been fully and properly informed by the information available to Mrs. Clare that they would have either not taken Richard as a pupil on the basis that the school was inappropriate for his needs or sought in advance of his acceptance to have Richard assessed or to try to put in place, by the seeking of resources and/or teachers with an understanding and ability to deal with the condition ultimately diagnosed as ADHD. The evidence of the Head Master of St. Declan's and Mooincoin was of such schools being concerned to deliver appropriate education to Richard to meet his needs. In my judgment, as a matter of fact, they have done all that was reasonable to accommodate the needs of Richard. I take the like view concerning the position of the De La Salle, whose position has to be judged against the circumstances in which they were placed by Richard being placed with them without disclosure of the stated problem that he had, which was totally unknown to them, but which when known to them they co-operated in dealing with the question of the medication. They could not and should not be expected to produce an instant solution to a problem which, on the basis of the case placed before me by the Plaintiffs, was of enormity. I do not accept that it was a question of enormity, but it was a problem that required to be dealt with on an information basis. If the facts were as alleged by the Plaintiff at the time of Richard's entrance to the De La Salle, they were not disclosed to that school.

    In this judgment, I am mindful that the Plaintiff was at all material times a minor. I am satisfied and find as a fact and as a matter of law that the Plaintiff's human rights, constitutional rights, statutory rights and common law rights have been fairly and properly observed by both the Defendants and the schools at which he attended.

    Accordingly, I dismiss the Plaintiff's case.

    APPROVED JUDGMENT: SMYTH J.


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URL: http://www.bailii.org/ie/cases/IEHC/2004/350.html