The Home Education Network submits the following opinion on the Draft Education
(Welfare) Bill 1999:
The Education (Welfare) Bill 1999: "An Act to Provide for the entitlement of every child in the
State to a certain minimum education, and, for that purpose, to provide for the registration of
children receiving education in places other than recognised schools, the compulsory
attendance of certain children at recognised schools, the establishment of a National
Educational Welfare Board, the coordination of its activities, and certain other matters
connected with school attendance, the identification of the causes of truancy on the part of
certain children and the adoption of measures for its prevention, to repeal the School
Attendance Acts 1926 to 1967, to permit the supply of data relating to a person's
educational history to certain persons, to provide for the amendment of the Protection of
Young Persons (Employment) Act, 1996, and to provide for matters connected therewith."
1) The Fundamental Right to Home Educate
In general, the proposed Bill does not recognise the inalienable right enshrined in Article
42.1 of the Constitution that the "family is the primary and natural educator of the child." The
statement in the proposed Bill that it is "the duty of parents to send their children to school"
contradicts Article 42.1 of the Constitution, which states that it is the "inalienable right and
duty of parents to provide, according to their means, for the religious, moral, intellectual,
physical and social education of their children."
2) Definition of Minimum Standard of Education
For the proposed National Educational Welfare Board to asses whether parents "have the
capacity to provide minimum standards of education" fails to vindicate the Constitutional
right and duty of parents to provide their children's education "according to their means".
Home education is so different to classroom education that current assessment
methodology would be inappropriate. The proposed Bill equates school attendance with
education, which is viewed as a quantifiable product amenable to being confined to
particular times and places, and measured in amounts, i.e., "minimum". Home learning
families view education as a holistic process unconfined in time and space. The proposed
Bill does not have reference to the Supreme Court Ruling of 1943 removing as
unconstitutional the proviso contained in the 1926 School Attendance Act which had stated
that "a child between the ages of 6 and 14 shall not be deemed for the purposes of the Act
to be receiving suitable education in a manner other than attending a National school or a
recognised school unless such education and the manner in which the child is receiving it,
has been certified by the Minister of Education to be suitable". The Supreme Court found
"that the minister might require a higher standard of education than could properly be
prescribed as a minimum standard". Under the proviso, not only the education, but also the
manner in which the child is receiving it, must be certified by the Minister. The proposed Bill
contains similar requirements. Like the Supreme Court in 1943, we do not consider that
this is warranted by the Constitution. The State IS entitled to require that the child shall
receive "a certain minimum education". As long as, to quote Mr. Justice Geoghegan's 31
July 1998 ruling in the Christine Best case, "a parent is doing her best" to supply a general
standard of education, we are of the opinion that the manner in which it is being given is a
matter entirely for parents to determine, and is not a matter in which the State, under the
Constitution, is entitled to interfere.
3) Conscience and Lawful Preference
Article 42.3.1 of the Constitution states that "the State shall not oblige parents in violation of
their conscience and lawful preference to send their children to schools established by the
State, or to any particular type of school designated by the State". But Part III of the proposed
Bill states:
"...the Board shall -
a) if satisfied that the child concerned is receiving a prescribed minimum education,
register the child concerned in the register, or
b) if not so satisfied,
i) register the child in the register subject to the parent of the child undertaking to comply
with such requirements of the Board as in its opinion will ensure that the child receives a
prescribed minimum education, or
ii) refuse to register the child concerned in the register."
If a family educating their children at home on grounds of conscience and lawful
preference, were refused registration on the grounds that their educational provision,
although conscientious, failed to satisfy the prescribed "minimum standard", would the
children be forced to attend school? Would the parents be subject to criminal prosecution
for exercising their constitutional rights?
4) Advisory Committee
Section 11.2 of the Proposed Bill sets out the structure of the Committee to advise the
Board in relation to the performance of its functions. There is no provision in these
proposals for the inclusion of any representatives from the home education community. We
believe that this Committee should include not less than one person appointed from the
Home Education Network.