Historically, Ireland has produced very little legislation in the area of education. The past 15 years have, however, seen important additions to the legal framework in this area, covering matters such as the governance and operation of schools, the education of children with special educational needs and educational welfare more generally.

The Oireachtas is currently considering draft legislation that will add a substantial element to this framework in matters concerning school enrolment.

The legislation raises a number of important questions, one of the most important being how to balance the autonomy of schools in operating their admission policies with the need for effective oversight at a national level.

Devolving responsibilities to a local level has definite advantages. However, from a children’s rights perspective, the State must always ensure that regardless of how an education system is structured the devolution of authority does not impair a child’s right to access education by limiting possible avenues of redress, or indeed by allowing the autonomy of schools to operate without sufficient powers being available to a higher authority to take corrective action where a child’s right to education may be undermined.

It is clear from investigations undertaken by my office that the balance between autonomy and oversight has not been struck correctly in Ireland. There are serious difficulties with the system as currently constituted. Some of these deficiencies will be remedied by the legislation being considered by the Oireachtas but more could be done to strengthen the protection of children’s rights.

I recently published an investigation relating to a child in the care of the State who was refused admission to more than 20 schools. This was in spite of significant efforts made by the Health Service Executive – which had responsibility for the young person – to find him an appropriate school placement. Each school made an individual decision on the enrolment application; each of those decisions happened to be negative, leaving the young person in a completely unacceptable situation and relying on home tuition.

The primary difficulty was not with the decisions made by individual schools. It was the cumulative effect of those decisions where there was no mechanism for another authority to step in to ensure the young person’s right to access education.

Mechanism
At the conclusion of this investigation, I recommended that the Department of Education and Skills provide in law for such a mechanism. The inclusion in the proposed admissions legislation of a power for the national education welfare board to designate a school for a child who has not been able to access a school place is therefore most welcome. A similar provision will also exist allowing the national council for special education to designate a school place for a child with special educational needs who has not been able to secure a place.

Another issue that has been subject to investigation is how individual schools operate their admissions policies. Last year, my office published an investigation concerning a young person who was refused admission to a school on the basis that she was pregnant, and who was refused on a second occasion by the same school on the basis that the young person was by then a single mother.

In addition to the obviously discriminatory aspect of the case, the investigation also uncovered that the school’s general approach to operating its admission policy was very concerning. However, one of the most striking aspects of this case was the absence of a power on the part of the Department of Education and Skills to intervene in order to ensure that a school’s enrolment policy was being implemented correctly, even when serious deficiencies were identified.

This issue is also being addressed in the proposed legislation on admissions, a further positive development.

Concerns
Notwithstanding these improvements, the draft legislation currently before the Oireachtas gives rise to some concerns. Of particular importance to the Ombudsman for Children's office is the proposed change to the way in which parents can appeal an enrolment decision made by a school.

At present, if you are unhappy with an enrolment decision made by a school, appeal lies to the secretary general of the department, who may appoint an appeals committee to consider the case.

The proposed legislation would remove enrolment from the remit of the appeals committees and confer responsibility for considering the appeal on boards of management. The stated purpose of this change is to introduce a new structure that is less burdensome and more cost-effective.

I have concerns regarding this proposal. First, appeals committees established by the secretary general of the department are independent of the schools whose decisions are being appealed. Boards of management, on the other hand, work very closely with the initial decision-maker on enrolment – namely the principal – and this does not provide the independence guaranteed by the current mechanism.

Second, boards of management are composed of individuals serving on a voluntary basis who are very often closely tied in with the local community. Being the final arbiters of what can be difficult and contentious decisions may not be what board members may wish themselves.

Finally, one of the main aims of the proposed legislation is to enhance the transparency and consistency of the enrolment process throughout the country. As this is likely to lead to a decrease in the number of admission appeals, the burden on the existing appeals committees should diminish. For these reasons, I believe that responsibility for overseeing the appeals structure should remain with the department.

A different balance
Striking the balance between guaranteeing the autonomy of schools and ensuring adequate oversight is not a scientific exercise. However, as I have outlined above, I believe that we must strike a different balance in Ireland that strengthens the oversight of the operation of schools' admissions policies.

In light of my experience investigating complaints regarding schools and the Department of Education and Skills, my view is that there are areas in which the proposed legislation could be enhanced to further ensure that children’s right to education is given the legal protection it requires. It is my hope that the Oireachtas will take this opportunity to put in place a framework for school enrolment that is as robust as it can be.

Emily Logan is the Ombudsman for Children