The report of the Task Force on Autism, which was commissioned by the Minister for Education to assist him in considering the future provision of education for autistic children, is not admissible in an action by an autistic child in which he seeks appropriate education, the High Court ruled yesterday.
Mr Paul O'Higgins SC, for the Minister and State, had argued that the report of the task force, which was presented to the Minister last October, amounted to hearsay and was not admissible in the proceedings taken by Colum McNabb (4), who is attending the Abalta school for autistic children in Galway city, established and largely funded by parents and based on the system of applied behaviour analysis.
Mr O'Higgins said the report had not gone into the public domain "in the formal sense" and it was a general overview of education provision and support for persons with autism. He argued it was no part of the court's function to consider the best method for the Executive to carry out its constitutional duties.
Mr John Gleeson SC, for Colum, who is suing through his mother, Ms Nichola McNabb, of Moycullen, Co Galway, said part of his case was that Colum should continue in the Abalta school, and that argument was significantly supported by the report of the task force. The report was dedicated to those with autism and was intended to inform people about what should be done to meet the needs of those with autism.
It would be unfair if the court ruled the report inadmissible. It had been commissioned by the Minister himself and advised the Minister, set out recommendations for future provision for autistic children and included information about current provision.
Yesterday was the 15th day of the action in which Colum is seeking declarations that the State has failed to date to provide appropriate education for him and requiring it to make appropriate education provision in the future.
The State has denied the claims and pleads there is an appropriate facility for him at the Fairlands Child Development Centre in Galway city.
Ruling the report inadmissible, Mr Justice Lavan said he had evidence of the task force being commissioned and of its reporting and that was as far as he needed to go. He accepted that it did not constitute legally- admissible evidence.
The judge also noted that the report was delivered to the Minister in October 2001, just after Colum's action was initiated. It would be wrong to say to a Minister that should you seek advice in relation to what you should do in the future, that could be used against you in legal proceedings, he added.
Earlier yesterday the judge granted an application by Mr Gleeson that the State should be prevented from making a case that the education provided by the State for Colum to date was appropriate given the resources available to the State.
Mr O'Higgins said he was surprised Mr Gleeson was surprised the resources point had been raised. It must have been obvious, on a purely intuitive and logical basis from the outset of the litigation, that the resources issue was a very major factor.
It was a matter of law and of obvious pleaded fact. He also argued the resources issue was raised through reference to a sub-section of the Education Act in the State's defence.
Mr Justice Lavan said he was satisfied, having considered the defence of the State, that there was no plea based on resources and he declined to accept the proposition that the plaintiff was bound to exercise his intuitive judgment regarding what was to be called in evidence by the State. The case resumes today.
