Mick Clifford: Law demands equal treatment for all children. Results have been pretty poor

Michael Moynihan is not the first minister to say schools will be compelled to open special classes. They've had that power for five years now. So why hasn't it happened?

School bags hanging on a fence in Dublin as a protest over a lack of school places for autistic children at the Department of Education took place on Marlborough Street on Monday. in Dublin. Picture: Justin Farrelly/RollingNews.ie

Michael Moynihan is the new sheriff in town when it comes to ensuring that all children get the education they deserve. The junior minister with responsibility for special education told Irish Examiner political editor Elaine Loughlin that schools may be compelled to open special classes.

“We need to make sure that there is no culture, or there’s no attitude, or there is no reluctance to embrace the opening of special classes,” he said in an interview. “And if there is, we need to break them down.”

His comments came days after a group of parents held a sleepover protest outside the Department of Education HQ in Dublin to highlight the failure to provide their children with a school place. Next Saturday a protest will take place outside Cork City Hall at 2pm by parents struggling with precisely the same issue.

These parents, who already face significant challenges in ensuring their children are treated equally, have far better things to be doing. But the situation in which they find themselves in an alleged developed western society in the 21st century propelled them to give up their time. 

Now, however, there is a new occupant of the office that oversees special education. To be fair to Moynihan, he has a personal interest in this area as he noted in an Oireachtas meeting last year that he has a son with a diagnosis of autism.

Except…except, we’re heard it all before. The minister referred to Section 37a of the Education Act which gives him the power to force a school to open a special class if there is demand for such in the school’s area. Special classes typically consist of six pupils, who have needs that are usually associated with the autism spectrum. 

Their needs are such that they don’t require being educated in a special school and the optimum solution, for education, socialising and growing up, is to be accommodated in a special class in a mainstream school. They are entitled to no less, even if, for a variety of reasons, a particular school is reluctant to run a special class.

That was the thinking behind Section 37a which came into force in 2018. The problem is that the law is grand, but for some reason successive governments have been reluctant to enforce it. Michael Moynihan is the fourth minister over the last six years who has the power to compel schools to provide this element of education yet the power has rarely been invoked.

When 37a was brought into force in 2018, Joe McHugh was the minister for education. He invoked the power just twice, both times in Dublin, but there was little effective follow through to ensure that special classes were opened. In November 2019, he issued a release “urging principals, boards of management, and patrons across south Dublin to offer to increase places for children with special needs”. 

Of course, it is better to do these things by consent, but the urging has had minimum impact in this area. Parents of children who don’t have a place in school need, and are entitled to by law, more than urging.

New minister for education Michael Moynihan is the fourth minister over the last six years who has the power to compel schools to provide this element of education yet the power has rarely been invoked. Picture: Dan Linehan

In 2020, a junior minister, Josepha Madigan, was appointed by the new government with responsibility for special education. She invoked 37a on a number of schools in Dublin. The schools in question failed to comply. She wrote to them a second time, but still no result. A few months later she appeared to be getting tough. ‘Josepha Madigan vows to enforce law on special needs places in schools’, read one headline. Sound familiar?

There followed a pattern in which the plight of one or more families received media coverage about what is a scandal, which in turn prompted some action but ultimately little change over the long term.

At one point when families voices were being heard, Ms Madigan proposed — via Twitter initially — that new centres be set up for children who can’t get a school place. The reaction among parents was despair and a crass suggestion was quickly abandoned.

This was followed in 2023 by the implementation of a new system in which Special Education Needs Officers (SENO) identify where a need is not being met, compile a report and present it to the minister after which the schools in question are compelled to do their duty. A great system in theory, but it produced precious few results in practice.

It was obvious when Ms Madigan took up her role that she was full of energy and intent and determined to ensure that children’s needs would be met. Ultimately, however, the broader political will beyond the confines of her office, wasn’t there to see it through.

In 2024, she stepped down and was replaced with Hildegarde Naughton. This appointment was a downgrading of sorts for the role as Ms Naughton combined it with her job as chief whip of the government. And on it went. 

Good intentions, acceptance that what is going on is a scandal, a flurry of activity every time a family is forced to expose their pain to the glare of media and in the end very little movement. Now, minister Moynihan is in the chair and he says it’s going to be different.

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If so, he must acknowledge what has actually developed. There are some schools that go out of their way to do their duty in providing special classes. Others are hamstrung by lack of physical space or resources. Some among this cohort do what they can, others use their prevailing circumstances as an excuse not to provide a special class. 

Then there are the schools which have little interest in doing their duty, oftentimes because other parents might perceive that it takes away from a school’s focus on mainstream education. This attitude is not exclusive to, but certainly most prevalent in, better off socio-economic areas.

“We need to ensure that there is no culture, or there’s no attitude or there is no reluctance to embrace the opening of special classes. And if there is, we need to break it down,” Moynihan told the Irish Examiner. 

All of which is true. But doing so will require in some instances more resources. In other cases it will demand that the department and the minister adopts an approach that identifies and faces down resistance that not based on the best interests of the children who require an education.

The law that demands equal treatment for all children has been in place for the last five years. What has been missing is the political will to implement it fully. Whether or not that is going to change will not be determined by Michael Moynihan’s declarations this week, or even his best intentions. The results will ultimately be the judge of that and so far the results have been pretty poor. Parents who have had to fight constantly in a developed democracy for their children’s basic rights deserve better.