24 May 2022

Legal challenges over failure to reopen Covid-19 shut schools to be fast-tracked

coronavirus covid-19

Several legal challenges brought over the government's decision not to reopen schools for pupils with special education needs are to fast-tracked by way of telescoped hearing, the High Court heard today.

Last week five judicial review actions were initiated against the Minister for Education, Ireland and the Attorney General over the decision not to reopen the schools during the ongoing level 5 covid-19 restrictions.

The applicants seek various orders injunction compelling the Minister and the State to reopen the schools to those with intellectual disabilities.

When the cases were mentioned before Mr Justice Charles Meenan at the High Court on Monday morning Derek Shortall SC for the applicants said that it had been agreed that in order to save time the actions could proceed by way of a telescoped hearing.

That means the applications for both permission to bring the challenges, as well as the action itself, will be heard at the same time and by the same High Court judge.

Mr Shortall, who said that the matter is extremly urgent from his cleint's prospective also said that it was hoped that in order to expidite the matter it is hoped that the court will hear two lead cases, rather than all five actions.

The two test cases have yet to be identified, the court heard.

Counsel said that his clients are anxious that the matter be heard as soon as possible. Catherine Donnelly SC for the respondents said her side needed time to reply, adding that would be premature for the court to fix a hearing date.

Mr Justice Meenan, agreed that it would be premature to fix a hearing date for the hearing. However, the Judge said the matter is urgent and directed that that the state file its reply within a week.

The matter was adjourned for a week, when hopefully a hearing date can be fixed the judge said.

The actions have been brought on behalf of five school-going children, all with special needs, who cannot be identified for legal reasons.

The case arises after the Minister said on January 19th last that the schools would not re-open during the current covid-19 restrictions, due to a lack of cooperation from key staff trade unions.

The applicants seek an order compelling the Minister and the State to provide the children with an adequate and appropriate education, on the basis that the respondents have an obligation under the 1988 Education Act, and Article 42 of the Constitution. 

They also seek a declaration that the respondents have failed in their duty to provide for an adequate education for the children under the 1998 Act and Article 42.

They also seek injunctions aimed at compelling the state to the provide the children with appropriate and adequate education.

The applicants say that prior to the announcement, the respondents believed that it was appropriate that the schools should have re-opened as planed on January 21st last.

The parents fear for their children's mental and physical well-being and say that the schools should be reopened by the government.

It is also claimed that the National Public Health Emergency Team as well as the government deem schools safe to re-open.

It is further claimed that the respondents have failed in their duties towards the children, who have various conditions including Autism Spectrum Disorder.

The court heard that some of the children involved have severely regressed in basic skills due to the school closures and the lack of supports they would normally get as part of their education.

Their cousel said that the situations the parents of these children find themselves as "harrowing".

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