Parents Win Important Court Ruling

What’s been said?

Tusla is the Children and Family Agency in the Republic of Ireland (ROI). After major reorganisation in 2014, Tusla is now “the dedicated State agency responsible for improving wellbeing and outcomes for children,” emerging from “the most comprehensive reform of child protection, early intervention and family support services ever undertaken in Ireland.”

In many European countries including the ROI, parent have to apply to home educate. The ROI requirements are set out in Chapter 4 of the Department of Education and Science’s Guidelines on the Assessment of Education in Places Other Than Recognised Schools.

  • 2.3 of the Guidelines lists the Constitution of Ireland’s “rights and duties of the State in the matter of education.” Its Article 42 states two important principles. Firstly that “the primary and natural educator of the child is the family and [the State] guarantees to respect the inalienable right and duty of parents to provide… for the religious and moral, intellectual, physical and social education of their children.” Secondly that “Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.”

However, the State’s role as “guardian of the common good” is to “require … that the children receive a certain minimum education, moral, intellectual and social.” §2.5 of the Guidelines therefore demand that “Children receiving education in places other than recognised schools must be registered with the National Educational Welfare Board… and the Board in turn must be satisfied that the child is receiving “a certain minimum education.” [All emphasis added]

The registration procedure involves completion of Form R1 and this is where Nicholas and Catherine Sunshine of County Waterford fell foul of the system. They were concerned that the form asked them to supply significant amounts of legally unnecessary personal information, as well as giving unlimited consent for ongoing assessment of their home education. So they decided to challenge the requirement.

An article by Mike Donnelly of the HSLDA (4 October) reports that after refusing to complete Form R1, the Sunshines were convicted in a district court in September 2018 of not sending their oldest child to a “recognized” school. Their written notification of their intention to home educate was unacceptable, and their child was required to attend a “recognized” school.

The school attendance notice, Donnelly continues, was then enforced under the 2000 Education Welfare Act as a “criminal truancy prosecution.” He summarises the outcome of their case thus:

“An Irish circuit court has reined in an agency that had become increasingly intrusive in a major precedent-setting case.

On September 26, 2019, the court issued a seven-page ruling in Tusla v. Sunshine holding that Irish homeschoolers do not have to use the national Child and Family Agency’s form known as R-1 when ‘applying’ for home education registration in the Republic of Ireland. The judge wrote succinctly, ‘I am satisfied that the prosecuting authority is incorrect in asserting that full completion of Form R1 is a necessary prerequisite to the Preliminary Assessment.'”

Donnelly further observes that “successive agencies in charge of registration have increased the intrusiveness of the assessments over the years,” noting the resulting reaction of “fear and unease” amongst the HE community.

Mrs Sunshine is quoted as saying, “We had no choice but to resist Tusla’s unlawful intrusion in our family. We also knew others were fearful and some chose not to home-educate out of fear of Tusla’s power.”

The family’s lawyer, Berenice McKeever, commended their perseverance with the words, “It is a credit to our clients who stuck to their principles and… withstood great pressure, especially after the initial conviction and saw this through on behalf of themselves and other parent[sic].”

Although much of another article is opinion-based, the first half does give more details of the interaction which led up to this case. Significantly, the author notes that “at the time of writing,” this judgement “has not been covered by any of the main Irish national media outlets.” That is still the situation and one has to wonder why, when the press is often ready to highlight negative spin regarding HE.

Why does it matter?

Tusla’s website speaks of “progressive legislation” and “partnership and co-operation in the delivery of seamless services to children and families”.

Unfortunately, in the mindset of the modern civil servant, the concept of delivering “seamless services” can justify greater intrusion into the private life of families, despite the Constitution of Ireland acknowledging that the family is “the primary and natural educator of the child.” The single agency approach can also cause unhelpful conflation of education with child protection.

The Sunshine family should be commended for their courage in taking on the challenge and seeing it through. Subsequent families seeking to home educate in the ROI will benefit from the judicial victory they have won and the ground they have gained. As Catherine Sunshine reportedly said, “This is an important win for the citizens of Ireland in the face of serious state overreach.”

Donnelly’s conclusion is valid, “It shouldn’t have taken a judge to tell Tusla that it was overreaching. Regrettably, too many government institutions, especially in Europe, view education as a paramount state responsibility. Home education is regarded with suspicion and as something that requires invasive state oversight.” [Emphasis added]

If an agency regularly exceeds its remit, the impression is gradually accepted that the new ground taken is actually legitimate ground, whether or not this is the case. A path is trodden and is assumed to be the way all future users will go.

What can I do?

Pages 5-6 of the Eurydice report featured in this Byte on Home Education Policies in Europe have a useful map and comparison chart clearly displaying the requirements in each European country.

Wise up to the prevailing conditions in other European nations. Realise how privileged we have been in the UK, and how easy it has been for home educators here to take this for granted.

Remember the success of those who protested the Scottish Named Person Scheme. Make every effort at both local and national level to withstand creeping intrusion into your freedom to home educate, and support those who are doing the same.

If you believe the authorities are overstepping their boundaries, say “No!”