The Courts again uphold the rights of parents and children in the education system

In a recent case at the Court of Appeal, the courts have again upheld the rights of parents and children in the education system. The reasoning of the judgment also strengthens the arguments of atheist and secular parents to have their rights respected in Irish schools.

The case (Burke v the Minister for Education 09.03.21) was in relation to home-schooling and the Leaving Certificate scheme in 2020. The Minister Norma Foley had failed to include home-schooled children in the scheme.

There is a Constitutional right to home-school your children if that is what you want to do on the grounds of conscience. But Minister Norma Foley completely disregarded this Constitutional right when the scheme to replace the Leaving Certificate was put together last year.

The Court of Appeal said of the Minister:

“266 – Accordingly, we are of the view that the Minister took into account an irrelevant consideration when she considered that making provision for the respondents would lead to dissatisfaction among the in-school students and that far from being a valid justification for what was done, it was contrary to reason and common sense in the Keegan sense.”

The Court of Appeal also stated:

“193 – As the State has a duty to respect the right of parents to provide for education through home-schooling, we consider that there is a concomitant duty on the State when formulating education policies for children to take reasonable account of those who are being home-schooled. By virtue of the interwoven rights set out in the Constitution as regards the rights of the child, this in turn creates a concomitant right of the home-schooled child to have reasonable account take of his or her situation when education policies are being implemented by the State, That right can be expressed also as a duty on the State not to disadvantage a child who is home-schooled where it is reasonably possible to avoid that outcome.”

Implications for non-religious families

The Court of Appeal has upheld the right of minorities in the education system, and this case will support the rights of nonreligious families. The Minister for Education Norma Foley takes no account, never mind reasonable account, of children whose parents on the grounds of conscience do not accept the type of religious and moral education on offer in publicly funded schools.

It is the Constitutional duty of the Minister to ensure that our children do ‘not attend‘ religious instruction. The State has failed to put in place any guidelines to ensure that that right is upheld by schools. This means that there is no practical application given to it on the ground. Instead children are just left sitting in the class where religious instruction takes place, and no other subject is offered.

At second level our children are just enrolled in the State Religious Education course. The main aim of this course is to develop values to enable students to see the relevance of religion to their lives. If families do manage to opt their children out, no other subject is offered.

Schools with a Catholic ethos integrate Catholic faith formation into NCCA curriculum religion and just enrol students into it without any regard for Article 42 of the Constitution (Guidelines for the faith formation and development of Catholic students.)

The Department of Education has told ETB schools to no longer integrate catholic faith formation in the NCCA religion course, but they have put in place no follow up or guidelines to ensure that this has happened. That policy is a total disregard for the Constitutional rights of parents.

The Minister simply ignores her Constitutional duty to protect the right to ‘not attend’ religious teaching under Article 44.2.4 in conjunction with Article 42 of the Constitution.

The Minister must take reasonable account of minorities when formulating education policies

The Court of Appeal in the Burke case said that the State when formulating education policies for children had to take reasonable account of minorities.

When will Minister Norma Foley take account of the rights of minorities to ensure that their children do not attend religious instruction?

It is not for schools to decide how and if parents can exercise that right, it is the duty of the Minister. Neither has the Minister the right to decide for parents if a particular type of religous or moral education is suitable for their children.

Parents are not aware of where religion is being integrated into curriculum subjects as schools are not obliged to inform them. Again the Minister has taken no account of the rights of minorities in publicly funded schools.

The Minister leaves it up to each school how they implement the Constitutional right to not attend religious instruction. She has failed to take reasonable account of minorities with this policy, as we know that children are left sitting in the class where religious instruction takes place. Schools simply ignore the right to ‘not attend’ religious instruction and that is the responsibility of the Minister. She has failed in her Constitutional duty.

Children from non-religious families suffer a disadvantage in the education system

The state has failed to take reasonable account in its education policies to respect the right of parents to ensure that the teaching of their children is in conformity with their convictions under Article 42 and Article 41 of the Constitution.

Children from non-religious families suffer a disadvantage in the education system, as they don’t have the same teaching time as those that choose to take religion classes. They don’t have access to a moral education (which the State is obliged to ensure under Article 42), as the only moral education on offer is through religious education.

Many children from non-religious families can’t access objective relationship and sexuality education, as it is delivered through the ethos of religious schools. They are obliged by force of circumstance to send their children to these schools, as they are the only schools in their area.

Children from atheist and secular families don’t have access to curriculum Religious Education, an exam course at junior and leaving level certificate level as the course is against their conscience.

Binding Authority

The Department of Education and successive Ministers for Education have been working on the basis that they have a duty to protect only the rights of religious parents in the Constitution.

Now the Court of Appeal has said in the Burke case that:

“171 –The decision of the Supreme Court in the Campaign to Separate Church and State v Minister for Education is binding authority…..”

Justice Barrington stated in the Campaign case when referring to Article 42 of the Constitution that:-

“… In other words the Constitution contemplates children receiving religious education in schools recognises or established by the State but in accordance with the wishes of parents.

It is in this context that one must read Article 44 S.2 s.s.4 which prescribes that:-

“Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.”(pages 25,26)

What part of the above statements in the courts does the Minister, the ETBs, the TUI, Patron bodies, schools and religion teachers not understand? Why do they continue to disregard the “wishes of parents”? They cannot decide for parents what is or is not against their conscience.

They simply have no right to do this. They cannot decide what religous or moral education is or is not suitable for children.

They cannot continue to tell us that our children do not have a Constitutional right to not attend curriculum Religious Education by falsely claiming that it is not religious instruction under Article 44.2.4 of the Constitution.

Not only do our children have the right to not attend, but they have a right to another subject as they should not be disadvantaged just because their parents are exercising their Constitutional right under Article 42 and Article 44.2.4.

We have a right to equality under Article 40 of the Constitution, and our children should not be disadvantaged because we exercise our Constitutional rights.

It is only a matter of time before we access our Constitutional and human rights. This latest case supports the education policy of Atheist Ireland and the work we have put into this area over the years. Church and State cannot continue to disrespect and discriminate against us any longer. We will continue to campaign for our rights.



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