Family begins Supreme Court appeal in fight for ABA education for autistic son

An appeal brought on behalf of a young autistic boy against the High Court's refusal to compel the State to provide funding into the future for a specific form of education for him has commenced before the Supreme Court yesterday.

In what was regarded as a test case for autistic children seeking education according to the system of Applied Behavioual Analysis (ABA) Seán Ó Cuanacháin (10), who sued through his father Cian, of Woodbine Avenue, Mountain View, Arklow, Co Wicklow sought orders compelling the State to provide funding for education under the ABA method.

However in a judgement delivered in 2007 Mr Justice Michael Peart held that the programme of education being provided by the State for Sean - an eclectic and Model A programme - was "appropriate autism specific educational provision". On that basis, the judge declined to make orders requiring the State to fund an ABA programme.

While the boy is being educated under the ABA method, which the State is providing, in their appeal the family are seeking a declaration from the court that the State must provide Sean with ABA.

Today Paul Sreenan SC for the family argued before a five-judge Supreme Court that the High Court "erred in law and fact" on a number of grounds including that Mr Justice Peart's holding that the eclectic model was appropriate for Sean, and by ignoring the issue of the parents' choice that their son be educated through the ABA method.

The Ó Cuanacháin also claim that the High Court was wrong in its decision not to award Sean damages against the State.

The High Court case lasted almost 70 days in the High Court and legal costs were estimated to be approximately €5m. In his ruling Mr Justice Peart awarded Sean almost €61,000 damages against the Health Services Executive because of "unreasonable" delay in diagnosing his condition and in providing appropriate therapies to him.

The HSE has cross-appealed that ruling to the Supreme Court.

The appeal, counsel said, relates to a past failure by the defendants to discharge various duties to Sean, such as speech and language therapies, and for the future provision of ABA education and appropriate therapies for the boy.

However the Supreme Court, comprised of the Chief Justice Mr John Murray, Ms Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Ms Justice Fidelma Macken, on hearing that the State is providing funding for the provision of ABA for Sean asked if the central point of the appeal is now moot.

The court then invited both sides to make submissions on that when the cases resumes tomorrow.

Counsel said that Sean's parents wanted their son to continue with ABA but the State had initially refused to to provide this and instead proposed to provide for his continued education on the basis of an eclectic model.

However counsel said that Sean's parents Cian and Yvonne's "clear preference" was for him to continue to be educated through the ABA method. Sean, the court heard is currently receiving the ABA method, which has proved to be effective for him.

Counsel argued that in his judgement the judge had erred by holding that the eclectic method was appropriate for Sean, and had erred by failing to consider if the failure by the State to provide Sean with ABA amounted to a breach of the provisions of the European Convention on Human Rights.

Counsel said that Mr Justice Peart awarded damages against the HSE. However he argued that damages ought to have been awarded against the state. Counsel said that the State had failed in respect of its constitutional and statutory duties towards Sean.

The trial judge, counsel added was "clearly in error" by holding that the State was not liable for the failure to provide an education appropriate to Sean's needs following his diagnosis. The failure occurred during the 27 months between December 2002, when Sean was diagnosed, to February 2005 when his full-time placement was sanctioned.