Up to 200 parents of children with additional needs are threatening to take legal action against the Department of Education and unions over the continued closure of special schools.
A leading human rights solicitors’ firm is preparing a small number of test cases which will be submitted to the High Court next week if a resolution to the current dispute is not solved over the coming days.
Gareth Noble of KOD Lyons Solicitors said children have a “constitutional right” to an education that is suitable and appropriate to their needs, but he said vulnerable children are caught in a “blame game” between the department and unions.
Mr Noble, who is representing the parents, said legal letters have been issued to Department of Education, the Irish National Teachers’ Organisation (INTO), Forsa, the special needs assistants union whose members continue to work with adults with additional needs, and other teaching unions.
“From the perspective of these parents, the last thing they want is to go to court to vindicate the basic constitutional rights of their children . . All of this could be fixed over the weekend if the Government and the unions engage appropriately with each other, but there comes a point where on has to ask whether they are willing or capable of finding a solution that is child-centred,” said Mr Noble.
“The inability to provide for these children is really quite startling. Everybody is in agreement, I think, that these children have a constitutional right to be educated . . . That education must be suitable and appropriate to their needs.”
Talks resumed on Thursday between the department, the INTO and Forsa regarding the safe reopening of special schools. All sides have reaffirmed their commitment to the earliest possible resumption of school services for students with additional needs.
On Tuesday plans to resume school-based special educational needs services this week were scrapped after unions urged the Government to postpone the reopening, with INTO saying “grave” safety concerns of special needs assistants had not been adequately addressed.
In-school provision
The Department of Education confirmed it has received legal correspondence on behalf of parents of a number of children with special educational needs who are calling for the reopening of special education in-school provision.
Sarah Murphy, whose son has autistic spectrum disorder, an intellectual disability, and Down Syndrome, is one of the parents who wrote a legal letter to the department and unions.
The Wexford mother said her son’s development had regressed to such an extent during the first lockdown that he was barely able to participate at school when he returned.
“I’m not saying that all children with special needs absolutely need to go back to school . . . We are saying there are exceptional circumstances,” she said.
“We are not looking for damages; we are looking for some sort of optional provision. We are not even asking for full days. Anything at all so our children don’t lose too much of their social skills they have worked so hard to get,” she added.
Tanya Ward, chief executive of the Children's Rights Alliance, said there is a clear legal case to be made for the reopening of schools for students with additional needs.
“The law is very clear on this: the right to access education under the constitution is fundamental,” she said.
She said it is “very clear” that children have a fundamental right to access education under the constitution and under the European Convention on Human Rights.
“Of course there are situations where there is a general emergency and that is what we are in, but any infringement on a child’s rights need to be absolutely necessary and it has to be proportionate,” she said.
She said online learning is not a viable option for some children with additional needs and there is a duty to ensure they can access education that is appropriate for their needs.
The courts would consider the advice from the National Public Health Emergency Team (Nphet) which has not recommended the closure of all schools, said Ms Ward. She said the State is an outlier in Europe, as most other countries, including Northern Ireland, have been providing in-person education for children with additional needs throughout the pandemic.
Meanwhile, former minister for disabilities Finian McGrath urged for “common sense” to prevail in the talks between the department and industry unions. He said both sides of the debate must come to a workable solution.
Mr McGrath cited community disability day services, which are providing part-time care as a “potential model for the resolution of the row”. He said his daughter, who has a disability, is attending a day service “50 per cent of the time” where there are small numbers, temperature checks, and social distancing.
He said: “You cannot have a situation where our most vulnerable children in society are being left behind.
“We know there is fierce anxiety among staff, among teachers and SNAs (special needs assistants) but we also equally know that families are really suffering with children with major complex needs and they are not getting any education . . . We need to focus on the child with the disability and their families and careers,” he said.
Earlier on Friday the Health Service Executive’s chief clinical officer Dr Colm Henry said he hopes some elements of education could be given “priority status” in terms of reopening.
In particular, children with special needs are “perhaps much more vulnerable to the lockdown and closure” than other students, he said. Dr Henry told RTÉ’s Morning Ireland programme he believes it is “tragic” that the country is in a situation where schools are closed.
However, he said Ireland’s transmission levels are 10 times what they were in December, which is “frankly far too high” to allow schools to fully reopen. Transmission levels must reduce significantly before the “additional risk by the mixing of crowds or people in school settings” can be added into the mix, he said.
