B.B –v– A.A
 IEHC 394
This matter came before Mr Justice Hogan in the High Court on the 21st of August this year by way of an appeal from the Circuit Court. Judge Heneghan in the Circuit Court had made an order in July 2013 dealing with the choice of school that one of the children of the parties should attend. Given that the new school year was pending, the matter was heard during the Court vacation.
The background to the case was that the parents of the boy were separated and living apart. There were two children of the relationship, a girl, 14yrs and a boy, 12yrs. Mr Justice Hogan in his judgment refers to the children as Ciara and Conor, fictitious names. Ciara suffered from a disability which would likely leave her financially dependent on her parents for some time to come. Conor was due to start secondary school this autumn and a dispute arose as to the school which he should attend. Conor lives with his mother but has regular access with his father. It was agreed by all that both parents were dedicated to Conor’s welfare.
Aptitude tests had shown that Conor was ranked in the very highest percentile for his age. After the completion of primary school Conor was offered a place at school A. This school is considered a perfectly good school with a high level of academic and other achievements. Many of Conor’s friends were due to go there and there were good bus routes from his house to school A. However, Conor was also offered a place at school B, which is considered to be one of the leading schools in the country. One or two of Conor’s friends were due to go there and again bus routes to the school were excellent. School B is however a fee paying school and school A is not.
Mr B sought to have his son attend school A. It was his view that the family finances did not allow for private education. He was concerned also that Conor would feel socially isolated in such an environment as most children there would be from much wealthier backgrounds.
It was Ms A’s view that Conor should be given the best possible opportunities in life and for that reason, the family should not pass up on this opportunity. After the order was made by the Circuit Court in July 2013, school B indicated that it would be willing to give the family a 50% discount in the school fees. It had also been indicated by Ms A’s parents that they would pay the balance of the school fees. It was Mr B’s view that such commitments were vague and indefinite. Mr B also objected in principle to his son’s education costs being discharged by other family members.
The family home is owned outright. Mr B, until recently, earned a net salary of €4,500 per month. He is now required to pay €1,000 rent from same. Ms A earns €700 per month. Mr B had recently lost his job, but his prospects of regaining employment appeared good.
Other sources of capital included a donation made by Mr B’s brother to Conor and Ciara a number of years back in the amount of €30,000. This money is held in trust. There was also a savings fund of €16,000 which is due to mature in the next few years. Ms A suggested that some of this money could be put towards the cost of education, but Mr B objected to the use of the money in that manner.
There was an urgency to the case in that the school year was looming and the deadline for acceptance of offers by school B had to be extended pending the outcome of the Court hearing.
The jurisdiction of the Court derives from S.11(1) of the Guardianship of Infants Act 1964, allowing a guardian to apply to the Court on any question affecting the welfare of a child.
The Court looked firstly to Article 41 and 42 of the Constitution, which presupposes that both parents have an equal claim as regards the upbringing of their children. The Court said that where both parents have taken a responsible and contentious attitude to the welfare of the children both are entitled to have their views weighed fairly and equally by the Courts. Mr Justice Hogan indicated that it was his view that in this case, both parents were deeply committed to the welfare of their children.
Ms A contended that the order of the Circuit Court violated her ‘inalienable and imprescriptible’ rights under Art 42.1 of the Constitution, by prescribing that Conor be educated at school A. The High Court found that the wording of the Circuit Court order, which provided for Conor to ‘be enrolled’ at school A, was not final and could be re-visited as occasion may require. The High Court deemed that such wording was required, in matters of this nature, by the Constitution. The Court held that any order of the Court must allow for a change in circumstances or even a change of heart.
The Court indicated that this was not a case where either parent had failed their child, but the Court nevertheless found itself endeavoring to fulfill the role of the parents. In doing so the Court said that it endeavored to intrude as little as possible into family decision making and was guided by advancing Conor’s welfare.
The Court, in making its decision, looked to -
The views of the Child –
It was Conor’s express wish to attend school B. The Court felt that this should carry much weight. Both parents had told the Court that they did not want Conor interviewed by the Court and the Court didn’t feel that this was a case in which the Court should interfere with that parental decision.
The Means of the Family -
Here Mr Justice Hogan indicated that he agreed with Mr B that the family’s means could not stretch to covering private school fees.
Suitability of either School –
The Court held that school B would be the more appropriate of the two schools for a boy of Conor’s aptitude. The Judge said that this was not to endorse school B at the expense of school A.
The Court said that it accepted Mr B’s objection to the discharge of the school fees by a family member (Parents of Ms A), but that it could not be an objection which carried weight when looking at matters from the standpoint of the welfare of the child.
The Court noted the view of Mr B that Conor might suffer social isolation but said that it could not hold it as reason enough to refuse school B. He said that the school would be aware of such risks.
The Court held that given the forgoing factors, the appeal should be allowed. This was however subject to the following conditions –
- That school B waive 50% of its fees.
- That Ms A’s parents pay the outstanding fees. If this financial support did not materialise, the matter was to be re-visited.
The Court held that it’s order was not and could not be in the nature of a final order, both parents had the right to re-apply if there was a change in circumstances. The Judge however noted that it would be desirable to have such disputes mediated rather than having recourse to the Courts.
- Suzanne Dowling, Associate Solicitor
29 November 2013