The legal foundation in Ireland

After much research and consultation, the members of The School of Empowering Education founding committee have concluded that Ireland provides one of the most solid legal foundations in Europe for democratic schools. Two particular elements of law govern the question of educational provision in Ireland for children who are not attending recognised schools, these are the Constitution of Ireland (Bunreacht na h’Eireann) and the Education (Welfare) Act 2000.

The Constitution of Ireland, Bunreacht na hÉireann, acknowledges the family as the primary and natural educator of the child. It guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the education of their children. However, it does not prescribe how this education is to be provided. The Constitution makes explicit, that the State does not oblige parents to send their children to any particular type of school. Parents are free to provide education in their homes, in private schools or in schools recognised or established by the State. The Constitution sets out the rights and duties of citizens of the State in the matter of education in article 42 and article 44. These articles describe what one writer has called ‘‘a complex network of relationships between parents, children and the State.’’  Under article 42.1, the State guarantees to respect the right and duty of parents

to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

and article 42.2 states that

parents are free to provide this education in their homes, or in private schools or in schools recognised by the State.

A further clause, article 42.4, places a duty on the State to

provide for free primary education.

The Education (Welfare) Act 2000 states that parents must ensure their child receives a ‘certain minimum education’. Under section 16 of the Act  The Guidelines on the Assessment of Education in Places Other than Recognised Schools (Department of Education & Science, 2003) have been published. These guidelines do not issue an absolute definition of a “certain minimum education” but instead provides an elaboration or working definition of what such a minimum education entails. According to the guidelines, a certain minimum education should

be suited to the age, ability, aptitude and personality of the child be responsive to the child’s individual needs, should take cognisance of the areas of learning.

that are of interest to the child, and should ensure that his/her personal potential is enhanced and not suppressed.

address the immediate and prospective needs of the child, in the context of the cultural, economic and social environment.

provide a reasonably balanced range of learning experiences, so that no one aspect of the child’s learning is emphasised to the exclusion of others.

develop the personal and social skills of the child and prepare him/her for the responsibilities of citizenship.

contribute to the moral development of the child.

ensure the development of basic skills (as outlined below) so as to prepare the child to participate in society and everyday life.

provide opportunities for the child to develop his/her intellectual capacities and understanding.

The document also offers broad guidance on the process of assessment of home-based education and education in what the document refers to as “non-recognised schools”.  The document defines ‘non-recognised school’ as any form of school that does not meet all of the criteria as set out under Section 10 of the Education Act 1998, these criteria include:

teaching the curriculum as determined by the Minister for Education

agreeing to permit and co-operate with regular inspection and evaluation by the Inspectorate of the Department of Education,

agreeing that the school shall operate in accordance with regulations or circulars as may be made by the Minister of Education.

Non-recognised schools do not meet some or all of the aforementioned criteria and according to the document are:

contexts in which education is regularly and systematically provided for a number of children in a place other than their home… For example, parents may choose to have their children attend a private or independent school operated by a body (such as a trust, religious body, charity, foundation or company) or an individual. Some of these private schools have been founded with the intention of offering a particular or specialised curriculum, or for religious or cultural reasons.

Section 14 (6) of the Education (Welfare) Act provides for an assessment to be carried out in respect of a child who is a student at a school other than a recognised school. It is significant that The Guidelines on the Assessment of Education in Places Other than Recognised Schools point out that:

“an assessment of the educational provision in a non-recognised school is concerned only to establish that the children in the school are receiving a certain minimum education… [and that the] assessment is  not an inspection, such as that carried out by inspectors of the Department of Education and Science in recognised schools under section 13 of the Education Act 1998” [emphasis in original].

The role of Tusla

Instead of the Inspectors of the Department of Education, the assessment is carried out by any Authorised Person appointed by Tusla, the Child and Family Agency. Previously, the Authorised Person would have been appointed by the National Educational Welfare Board, however on January 1st 2014 the Child and Family Agency (Tusla) became an independent legal entity, comprising HSE Children & Family Services, Family Support Agency and the National Educational Welfare Board as well as incorporating some psychological services and a range of services responding to domestic, sexual and gender-based violence.

The Guidelines on the Assessment of Education in Places Other than Recognised Schools emphasise the limited nature of the assessment carried out by Tusla and state that:

“the limited purpose of the assessment process is designed to respect the rights of parents with regard to the education of their children while at the same time ensuring that the State’s obligations to ensure that children receive a certain minimum education can be fulfilled. It must be noted that the provision of a certain minimum education does not necessitate the use of any prescribed curriculum, the use of particular methodologies, or the inclusion of any specific subjects.”

The guidelines for the assessment list six principles which underpin the process, namely;

that the child has a right to a certain minimum education.

that the individual needs of the child are a paramount consideration.

that the right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children is respected.

that education provided in places other than recognised schools may be significantly different from that provided in a recognised school setting and that, depending on the circumstances, it may be equally effective if not more effective in meeting the learning needs of the child.

that the selection of resources and curriculum materials is a matter for parents, to be made in line with their educational values and beliefs.

that in the conducting of assessments, it is critically important that parents and others work together in an atmosphere of openness, transparency and mutual respect in the best interests of the child.

This legislation puts the school in a very strong position. The School of Empowering Education will not be inspected by Department of Education Inspectors whose primary focus is ensuring that the national curriculum is taught and taught to a sufficiently high standard.

Instead, the school will be inspected by Tusla, a state body whose primary focus is the welfare of the child and each child’s individual needs. In addition, the assessment tool which will be employed is designed to be limited in its scope in order to respect the parents’ choice of education for their child.

Together with the parents of students who have chosen to attend The School of Empowering Education we are confident that we will satisfy Tusla that our students are well taken care of and receive a moral, intellectual, physical and social education bar none that can be found nowhere else in Ireland.