High Court of Ireland Decisions

harp graphic.

 

 

 THE HIGH COURT

[Record No. 2024/760JR]

[2025] IEHC 230

BETWEEN

L

APPLICANT

AND

 

THE TEACHING COUNCIL

RESPONDENT

 

JUDGMENT of Mr Justice Barr delivered electronically on the 14th day of March 2025.

Introduction.

1.                  The applicant is the principal of a primary school. In these proceedings he is challenging a decision of the disciplinary panel of the respondent (hereinafter 'the disciplinary panel') delivered on 27 March 2024, which found him guilty of poor professional performance in delaying for 19 weeks in informing the parents of a nine-year-old, pre-verbal child, with autism, that an allegation of inappropriate behaviour towards the child by his teacher, had been made by a special needs assistant.

2.                  The applicant also challenges the subsequent decision of the disciplinary panel that the appropriate sanction was one of admonishment.

3.                  In essence, the applicant challenges the decisions of the disciplinary panel on the following grounds: that there was no principal of a primary school sitting on the disciplinary panel; that the disciplinary panel did not hear expert evidence before coming to its conclusion that he had been guilty of poor professional performance; that there was excessive delay on the part of the respondent in dealing with the matter; that the disciplinary panel had failed to give adequate reasons for its conclusions; that the disciplinary panel did not consider the confidentiality requirement as set out in the 2017 guidelines; that there was objective bias on the part of the disciplinary panel due to the fact that a member of the disciplinary committee of the Teaching Council had sat in the public gallery alongside the mother of the child during part of the hearing; that the disciplinary panel had made an error of law in reversing the burden of proof in reaching its findings; and that the sanction imposed, being the second lowest available sanction, indicated that the conduct did not reach the threshold of being serious conduct, which is required for a finding of poor professional performance to be made.

4.                  The grounds of challenge to the decisions and the response of the respondent thereto, will be set out in greater detail later in the judgment

Statutory Definition of Poor Professional Performance.

5.                  The term "poor professional performance" is defined in s.2 of the Teaching Council Act 2001 (hereinafter 'the 2001 Act') in the following way: poor professional performance means, in relation to a registered teacher, a failure by the registered teacher to meet the standards of competence (whether in knowledge, skill or the application of knowledge and skill or both) that can be reasonably expected of a registered teacher.

Chronology.

6.                  It was agreed that at the material time, the child at the centre of this controversy was nine years of age. He had autism. He was pre-verbal. He was allowed to wear ear defenders in class. He had the assistance of an SNA.

7.                  The unusual feature of this case was that there was essentially no dispute between the applicant and the director of the Teaching Council as to the essential facts. The applicant accepted that on 7 February 2019, the SNA, who was one of two assigned to the child's class, made an oral complaint to the deputy principal about an incident that she said she had witnessed in the classroom on 5 February 2019. She alleged that the class teacher had acted inappropriately towards the child by removing his ear defenders without notice and by shouting an instruction to him to finish a jigsaw that he had been working on.

8.                  That allegation was communicated by the deputy principal to the applicant.

9.                  On 12 February 2019, the SNA provided her allegation in writing. The essential complaint that she made was in the following terms (as redacted):

After repeatedly shouting at [child]  to do his work, [teacher] removed [child's] ear defenders, without any warning or any notice. He began to shout at him. [The child] was forced to place his fingers in his ears and got very upset. [The teacher] shouted things like "do your work or you will not get your lunch", and "hurry up [name of child]". He continued to shout at [child] until he completed the jigsaw. [ Child] finished the jigsaw after some time and began to eat his lunch with the other boys. [Teacher] then said "at least we know now that by taking his earphones off he'll do his work" and "you're lucky to be getting that".

10.              The applicant's evidence was that upon being made aware of the allegation by the SNA, he set up an internal investigation into this allegation.

11.              It appears that at sometime between 5 February 2019 and 11 February 2019, unknown to the applicant, the SNA informed the child's parents of what she had seen and heard in the classroom on 5 February 2019.

12.              In the weeks that followed, the applicant concluded his investigation. He came to the conclusion that the allegation made by the SNA was unfounded. However, he decided that it was prudent to keep the teacher under surveillance for a period to ensure that his behaviour towards the child was appropriate. During this time, the applicant dealt with Tusla and the Children's Ombudsman in relation to the issue.

13.              On or about 22 May 2019, the applicant informed the SNA that his investigation had concluded. He informed her that he found her allegation against the teacher to be unproven. He told her that she could report the matter to Tusla if she wished.

14.              On 10 June 2019, the applicant informed the Board of Management of the school of the outcome of his disciplinary investigation. They advised the applicant to obtain legal advice about telling the child's parents of the allegation and of the outcome of his investigation. The applicant obtained advice from the school's solicitor and from the Irish Primary Principal's Network (IPPN). They both advised that the parents should be informed.

15.              On 26 June 2019, the applicant informed the child's parents of the allegation and of the outcome of his investigation into it. (In some documents this is referred to as having taken place on 25 June 2019. There is nothing of relevance in this discrepancy).

16.              On 27 June 2019, the SNA made a second allegation against the teacher. She stated that he lifted the child roughly by his arms when he had fallen to the floor in the bathroom. She stated that that event had occurred on 26 February 2019. The investigation of this allegation, does not form part of any disciplinary complaint made against the applicant.

17.              On 15 December 2019, the child's parents made a formal complaint against the applicant that they had not been informed by him of the allegation made by the SNA concerning the alleged incident on 5 February 2019 until 19 weeks later, on 26 June 2019.

The Notice of Inquiry.

18.              By a notice of inquiry dated 31 March 2023, the applicant was informed that the following allegations against him would be investigated by the disciplinary panel of the respondent:

"That you, being a registered teacher, while employed as the principal at [name of school]:

(1) During the period of in or around February 2019 to on or around 25 June 2019, failed to inform the parents of [child]  a nine-year-old student with autism spectrum disorder, that:

(a) it had been reported to you verbally and or in writing that an alleged incident had occurred on or around 5 February 2019, whereby [teacher], class teacher, removed the ear defenders from [child] without any warning or notice, and/or shouted at him; and/or

(b) a complaint had been made to you by a member of staff arising from the incident referred to at (a) above; and/or  

(2) Such further allegations as may be notified to you."

19.              The notice went on to state that the allegation was one of poor professional performance in that he had failed to meet the standards of competence that could reasonably be expected of a registered teacher. In particular, the notice stated that he had engaged in conduct contrary to one or more of the provisions of the Code of Professional Conduct for Teachers, updated second edition, 2016, as follows:

"Teachers should;

3.1 - uphold the reputation and standing of the profession;

3.2- take all reasonable steps in relation to the care of pupils/students under their supervision so as to ensure their safety and welfare;

3.5 - report, where appropriate, incidents or matters which impact on pupil/student welfare;

3.6 - communicate effectively with pupils/students, colleagues, parents, school management and others in the school community in a manner that is professional, collaborative and supportive, and based on trust and respect;

4.8 - act in the best interest of pupils/students."

20.              The notice went on to outline to the applicant the rights that he would have should the inquiry proceed to an oral hearing. It also set out the sanctions that could be applied if a finding of poor professional performance was made against him.

21.              Following an extensive exchange of submissions and documentation, a hearing was held before the disciplinary panel. It dealt with both the allegation that had been made against the teacher and the allegations made against the applicant. The disciplinary panel found that the allegation against the teacher was unproven. On 27 March 2024, the disciplinary panel delivered its decision in the applicant's case. It found that the applicant had been guilty of poor professional performance in failing to inform the parents of the child of the allegations that have been made by the SNA, for a period of 19 weeks after the allegation had first been made.

22.              Following a further hearing, the disciplinary panel issued its decision on sanction. It decided that admonishment was the appropriate sanction. The decisions will be examined in more detail in the next section of the judgment.

The Decisions of the Disciplinary Panel.

23.              In the substantive decision in relation to the allegations concerning the applicant, the disciplinary panel recited the allegations that had been set out in the notice of inquiry and gave a brief overview of the history of the matter before it came on before them. In relation to the standard of proof and the threshold of conduct required to establish a finding of poor professional performance, the decision stated that the panel had applied the criminal standard of proof i.e. beyond a reasonable doubt. It stated that the findings of poor professional performance and of conduct contrary to the Code of Professional Conduct for Teachers all met the necessary threshold of seriousness.

24.              In relation to the first allegation as set out in the notice of inquiry, which essentially alleged that the applicant had delayed in informing the parents of the child of the allegation that had been made by the SNA, the disciplinary panel found that that allegation was proven as to fact.

25.              The disciplinary panel noted that the evidence of the child's mother that she had not been informed by the applicant of the allegation as set out at (a) and (b) of allegation (1) in the notice of inquiry, was not disputed.

26.              The disciplinary panel went on to state that the matters at (a) and (b) in the notice of inquiry were significant developments relating to the child's safety and welfare. It stated that parents could reasonably expect to be informed by their child's school principal in a timely way of such serious and significant events. The decision stated that it was equally clear that an omission to inform parents was accurately described as a failure on the principal's part.

27.              The decision went on to state that the panel found that the allegation amounted to poor professional performance.

28.              The decision stated that the failure to inform the child's parents of the report and complaint received by the principal was clearly a serious failure by the principal to meet the standards of competence that could reasonably be expected of a registered teacher. It held that the matters which came to the applicant's attention were of an exceptionally serious nature, not only in terms of the actions complained of, but also by reason of the child being non-verbal and his vulnerability. The decision stated that any competent principal with any level of necessary knowledge or skill would have realised and understood the importance of communicating this information to the parents. The importance of keeping the child's parents informed about significant developments in his school life was central to the relationship between his parents and the school. The decision went on to state that for that reason, a journal was kept in which the teacher and the parents made regular, usually daily entries, about the child's progress. Good communication between the principal and the parents was not just a matter of the parents' entitlement (although that was in itself important); it was also central to the child's ongoing safety and welfare.

29.              The decision stated that the disciplinary panel had carefully considered the reliance placed by the applicant on the Department of Education circular, which he had contended precluded him from sharing the relevant information with the child's parents. The panel stated that it was not persuaded that, on any reasonable construction, the circular could be read in that way. It went on to state that in the event that he had had any genuine doubt about the need to inform the parents, it had been open to him to look into that further and to take other advice about what he should do. The panel noted that when legal advice was ultimately sought, it was to the effect that the parents should be informed.

30.              The decision also stated that the disciplinary panel had carefully considered the argument that because the child's mother knew about the account given by the SNA of what had happened on 5 February 2019, it was not necessary for the applicant, as a school principal, to inform her. The panel stated that they did not consider that to be an adequate response or justification for a principal, on receipt of such a serious complaint, not informing the parents of it. The disciplinary panel stated that it was still essential in the interests of the child and his family, that the principal would inform the parents of these significant matters. They stated that furthermore, it was not clear that the applicant knew whether or to what extent the SNA had given this information to the child's parents.

31.              The decision went on to state that the disciplinary panel had paid close attention to the applicant's evidence, but was unable to conclude with any confidence what his actual reasons were for not telling the child's parents about the information and complaint about the way the child had allegedly been treated on 5 February 2019, an omission which continued until 25 June 2019. The decision stated that the applicant had not persuaded the panel that this was due to the circular, or to the child's parents having already been given the information by the SNA.

32.              The decision noted that the relationship between the parents and the school, had been strong initially, but had deteriorated radically in early 2019 and had never recovered. They stated that the relationship seemed to have become toxic. They concluded this section by stating "For whatever reason, he appears to have allowed himself to be distracted for a prolonged period from the need to carry out his duty to tell the parents that he had received information and a complaint that their non-verbal nine-year-old with autistic spectrum disorder, had been mistreated by his teacher. This was a serious failure to meet the standards of knowledge or skill that can reasonably be expected of a teacher or a principal".

33.              In relation to the findings of alleged breaches of the Code of Professional Conduct for Teachers, Updated 2nd Edition, 2016, the disciplinary panel found that there was a breach of para. 3.2 thereof, which provided that teachers should take all reasonable steps in relation to the care of pupils/students under their supervision, so as to ensure their safety and welfare. The disciplinary panel found that that allegation was proven. It stated that informing the child's parents of these matters was essential and not doing so, was a clear failure to take all reasonable steps in relation to the care of the pupil under his supervision, so as to ensure the pupil's safety and welfare.

34.              In relation to para. 3.5, which stated that teachers should report, where appropriate, incidents or matters which impact on pupil/student welfare; this allegation was found to be proven. The disciplinary panel stated that the relevant information clearly impacted on the child's welfare and it was not only appropriate, but essential, to report it to his parents.

35.              In relation to the obligation at para. 3.6 to communicate effectively with pupils students, colleagues, parents, school management and others in the school community in a manner that is professional, collaborative and supportive, and based on trust and respect; the disciplinary panel found that that allegation was proven. It stated that not telling the child's parents about these matters was a very serious failure to communicate effectively with them in a manner that was professional, collaborative or supportive, or based on trust and respect.

36.              Finally, in relation to the obligation at paragraph 4.8, to act in the best interests of pupils/students; the disciplinary panel found that allegation to be proven. They stated that not telling the child's parents about these matters was a serious failure to act in his best interests for all of the reasons identified in their findings.

37.              On 27 March 2024, the disciplinary panel held a further brief oral hearing in relation to what appropriate sanction should be made against the applicant. It heard submissions from counsel on behalf of the applicant and from counsel on behalf of the director. In considering the question of sanction, the disciplinary panel stated that in its view, the conduct fell into the mid-range of poor professional performance. The decision stated that the panel had considered a number of aggravating and mitigating features. The aggravating features were that the incident involved a non-verbal nine-year-old child with autism spectrum disorder. He was therefore particularly vulnerable and there was a heavy onus on his school principal to ensure that his parents were informed of information and a serious allegation about the way a teacher had treated him in school. The disciplinary panel noted that the failure to inform the parents had continued for approximately four months. The panel also noted that despite early encouraging signs in the submissions made to the panel on behalf of the applicant, which tended to indicate that he had accepted that he had been in the wrong, the panel noted that at the hearing before it, he was adamant that in not informing the parents during the period in question, he had done nothing wrong, and that there was no basis for any criticism of him in that regard. They noted that he had vehemently rejected all the panel's findings. The panel stated that this apparent lack of insight was a matter of concern to them and had to be regarded as an aggravating factor.

38.              The panel went on to state that there was a substantial number of significant mitigating factors. They noted that the applicant had had a long and very distinguished career as a teacher and principal. They acknowledged that he had demonstrated firm commitment to the highest professional standards and to the best interests of the children and staff at the school. The disciplinary panel noted that there had been no adverse findings against him in any process before the Teaching Council. They stated that on the contrary, he had demonstrated exceptional qualities as a teacher and as a principal, apart from the wrongdoing identified in the process before them.

39.              The disciplinary panel noted that there was no suggestion that the findings against him resulted from any wilful or other improper motive. The panel noted that a further mitigating feature of the case was the length of time from the events giving rise to the process in 2019, to the conclusion of the inquiry in 2024. They noted that the difficulty and stress inherrent in that process for any teacher, had lasted a long time. The panel considered that that in itself was a further mitigating element.

40.              The disciplinary panel went on to note that notwithstanding their concerns about the lack of insight on the principal's part, the experience of the inquiry process alone made any repetition of the same or similar conduct by him, extremely unlikely.

41.              In terms of sanction, the disciplinary panel stated that they had considered the sanction decisions that were open to it, starting with the option of imposing no sanction. That had been rejected as an option, because it did not address the nature of the findings which were mid-range in terms of their seriousness.

42.              The disciplinary panel stated that they did not consider advice as a sanction as being adequate to address the objects of a sanction decision either. They held that that sanction would not reflect the seriousness of the findings, or attach adequate weight to the aggravating features that had been identified by them.

43.              The disciplinary panel stated that they considered that the sanction of admonishment, which was referred to in the Teaching Council's sanction guidance document as "to reprimand firmly", to be the most appropriate sanction in the case. The disciplinary panel stated that based on the seriousness of the findings alone, the panel would not regard that as an adequate sanction. However, in the context of the exceptional mitigating features that had been identified by the panel and in the interests of affording the applicant as much leniency as possible in all the circumstances, it had decided to impose the sanction of admonishment as the one which most closely reflected the purpose and objects of a sanction as identified at the outset of the decision.

Circular 0049/2018.

44.              The primary defence put forward by the applicant at the hearing before the disciplinary panel in relation to the allegations of poor professional performance that had been levelled against him, was to the effect that he had acted in accordance with the provisions of circular 0049/2018. This circular was headed "Revised Procedures for Suspension and Dismissal of Teachers and Principals". It provided the procedures that had to be applied when investigating an alleged breach of discipline against a teacher or a principal.

45.              In particular, the applicant relied on the statement of general principles that was said to underpin the procedures set out in the circular. This stated that the procedures were intended to comply with the general principles of natural justice and to provide specific safeguards, including the following: that the Board of Management, as employer, has a duty to act reasonably and fairly in all interactions with staff and to deal with issues relating to conduct or professional competence in a confidential matter which protects the dignity of the teacher. The applicant laid particular stress on the following provision which provided "That all matters relating to the disciplinary procedure are strictly confidential to the parties and their representatives".

46.              The applicant maintained that due to this provision of the circular, it mandated that he had to keep confidential any disciplinary investigation that he was carrying out in relation to the allegation that had been made by the SNA against the teacher in February 2019. He stated that his reading of the circular meant that he was not in a position to inform the parents of the making of the allegation by the SNA while that disciplinary process was ongoing.

47.              The applicant maintained at the hearing before the disciplinary panel that he had done nothing wrong. He submitted that all he had done, was to comply with the terms of the circular, which was binding on him.

The Law.

48.              The court has already set out the statutory definition of poor professional performance contained in s.2 of the Teaching Act 2001.

49.              The seminal case on the gravity of conduct required at law to constitute poor professional performance is the decision of the Supreme Court in Corbally v The Medical Council [2015] 2 IR 304. In that case, the court was considering s.2 of the Medical Practitioners Act 2007, which defined poor professional performance in almost identical terms to that set out in s.2 of the 2001 Act.

50.              In that case, a very experienced and renowned doctor had made an error in the description of the operative procedure that was to be carried out on a patient. Before coming to the content of the various judgments, it is important to note that a number of facts were expressly conceded in the case. Firstly, the doctor concerned conceded that he had made a mistake in his description of the operative procedure. Secondly, the Medical Council conceded that it was not a serious error. Thirdly, it was agreed that the error had not played any part in the mistaken operative procedure that had subsequently been carried out on the patient, which was due to a systems error in the hospital's computer system.

51.              The key issue before the court was whether the error had to reach a particular gravity or seriousness before it could constitute poor professional performance. The Medical Council had argued that any error could be poor professional performance. It submitted that the error did not have to reach the threshold of being serious.

52.              The Supreme Court rejected that argument. The court held that only conduct that represented a serious falling short of the expected standards of the profession could justify a finding of poor professional performance.

53.              While all the judges were agreed that a threshold of seriousness had to be reached in order for there to be a finding of poor professional performance, there appeared to be some disagreement between them as to whether in the case of a once-off error, a higher threshold should apply. The reason for this apparent disagreement arises from the fact that in the majority judgment, Hardiman J relied on the statement of principles set out by Jackson J in R (Calheam) v General Medical Council [2007] EWHC 2606, where the judge had set out the relevant principles. He had stated that in relation to a single instance of negligent treatment, unless very serious indeed, it would be unlikely to constitute deficient professional performance.

54.              In their concurring judgments, both O'Donnell J (as he then was) and McKechnie J, while concurring with the overall tenor of the judgment delivered by Hardiman J, demurred from his apparent endorsement that for a once-off error, very serious conduct would be required to establish poor professional performance. Instead, they stated that the same threshold of seriousness should apply to all cases whether it was a once-off error, or a series of errors.

55.              In the course of his judgment, O'Donnell J stated that he did not agree that serious should mean "very serious", or that it could be said that only conduct sufficiently serious to call into question a doctor's registration, which means subjecting a doctor to the ultimate professional sanction of being struck off, is sufficient to justify a complaint or finding of poor professional performance under the 2007 Act. He stated that while he agreed that the analysis given in the Calheam case was helpful, it had to be applied with caution due to the significant differences between the statutory codes in Ireland and in England.

56.              In his concurring judgment, McKechnie J gave the following summary of the relevant principles in relation to a finding of poor professional performance at para. 163:

(1) The term "poor professional performance" has a threshold of seriousness built into it: therefore only conduct or activity, by act or omission, which reaches that level, can be said to meet the test. (2) This threshold applies whether the a legation be one of singularity or as involving more than one incident or activity. (3) There is no different and by implication a more serious test, for an isolated incident such as "very serious" or "grave" or words of similar description: such is not justified by the statute nor is it necessitated in the public interest: to require the same would simply add confusion. (4) Evidently in the normal course of events, it wil be more difficult to meet the test if there is but one incident a leged. (5) Conduct which can truly be described as trivial, minor or which can be classified as de minimis, wil not qualify. (6) Whilst outcome, detrimental consequences or causative effect are not essential, where present wil be factors for consideration. (7) Negligent acts or contractual breaches, may or may not qualify: circumstances and context wil determine. (8) A finding of poor professional performance does not depend on an assessment of a representative cross section of a practitioner's work, or as has been put, on the application of a "fair sample" test. (9) Such type of evaluation is appropriate for the purposes of the provisions of Part 11 of the 2007 Act: when invoked and where, despite opportunity having been given, the practitioner's standard of competence remains below the required level, the Medical Council can make a complaint: only at this point does the requirement of fair sample, intersect with, the disciplinary provisions.(10)Subject to such link however, this process is entirely separate and distinct from the making, investigation and adjudication of a complaint made under Parts 7 - 9 of the Act. (11)A finding of poor professional performance does not depend on conduct which impairs a practitioner's fitness to practise, or which ca ls into question his resignation. (12)This equa ly applies to a finding of professional misconduct, although in either situation such finding may, but does not necessarily have to, have such effect.

57.              In the first Ahmed case, Ahmed v Fitness to Practice Committee of the Medical Council 2021 IECA 214, the Court of Appeal came to the conclusion that the decision in the Corbally case held that a serious error on the part of the practitioner would be sufficient to constitute poor professional performance. In its judgment, the Court of Appeal cited the following dicta from the judgment of Hardiman J:

"Only conduct which represents a serious falling short of the expected standards of the profession could justify a finding by the professional colleagues of a doctor of poor professional performance on his part, having regard in particular to the gravity of the mere ventilation of such an allegation and the potential gravity of the consequences of the upholding of such an allegation" [para. 41].

58.              The Court of Appeal went on to state that the correct interpretation of the Corbally case was that serious conduct could amount to poor professional performance and it was not necessary to have very serious conduct in the case of a once-off error, as had been found by the High Court judge in the Corbally case: see paras. 26 and 27.

59.              In the second Ahmed case, Ahmed v FTPC 2024 IEHC 168, O'Higgins J noted the dichotomy between Hardiman J and the concurring judgments of O'Donnell and McKechnie JJ in Corbally in relation to the applicable threshold for once-off errors, but did not decide it. For the purposes of the case before him, he proceeded on the basis that a once-off error, if serious, could amount to poor professional performance.

60.              The court is satisfied that on a careful review of the authorities, the statement of principles in relation to what constitutes poor professional performance as set out by McKechnie J in the Corbally case, correctly summarises what is required in order for a finding of poor professional performance to be made.

Discussion and Conclusions.

61.              It is important to state at the outset that these are judicial review proceedings. It is not an appeal from the decision of the disciplinary panel. The court is not concerned with the merits of the argument put forward by the applicant for why he did not inform the parents of the allegation until 19 weeks after it had occurred. These are judicial review proceedings which challenge the decisions of the disciplinary panel on technical grounds. This court is only concerned with the specific challenges made by the applicant in his statement of grounds and in respect of which he was given leave to proceed.

62.              In Sweeney v Fah y [2014] IESC 50, the Supreme Court set out the relevant principles which govern the exercise by a court of its judicial review jurisdiction, as follows:

First, judicial review is concerned with the lawfulness rather than the correctness of the decision sought to be challenged. Second, where the jurisdiction of the relevant decision-maker to embark on the process of making the relevant decision is either not challenged or is established, an error by the decision-maker in reaching the necessary conclusions to determine the appropriate decision to be made does not, of itself, necessarily render the decision unlawful. At a minimum, it requires a fundamental error to raise the prospect that the decision is not merely incorrect, but also unlawful. It is unnecessary, for the purposes of this case, to attempt any exhaustive examination of what might be said to be the type of error which is sufficiently fundamental to render a decision unlawful in all types of cases. For present purposes it can at least be said that issues concerning the adequacy of evidence before a de cision-maker (as opposed to a complete absence of evidence of a necessary matter) will not render a decision unlawful.

63.              These views were echoed in the judgment of Charleton J in ER v Director of Public Prosecutions 2019 IESC 86, where he emphasised that judicial review was about process, jurisdiction and adherence to a basic level of sound procedures. It was not a reanalysis of the case.

64.              In Ahmed v The Fitness to Practice Committee of the Medical Council & Ors. [2021] IECA 214, the Court of Appeal stated that the principles set out in the Sweeney v Fahy decision also applied to any decision-making authority. The court went on to state as follows at paragraph 67:

The absence of an appeal therefore does not affect the role of the court in a judicial review. Nor does it somehow required the court to broaden the scope of the review such that it, in effect, becomes an appeal. The court must carry out its functions on judicial review mindful of the fact that it is a review and not an appeal. The point that judicial review is a review and not an appeal was made in Sweeney v Fahy and in all relevant authorities.

65.              Bearing these principles in mind, the court will now proceed to deal with the individual grounds of challenge as put forward on behalf of the applicant in relation to the decisions of the disciplinary panel of the respondent.

(a) Absence of a Primary School Principal on the Disciplinary Panel and/or Failure to Call Expert Evidence.

66.              The first ground of challenge put forward by the applicant was effectively a rolled up challenge to the effect that as there was no primary school principal on the disciplinary panel; it lacked the necessary expertise to deal with the matter. In the alternative, it was submitted that given this lack of expertise, the disciplinary panel had fallen into error in allowing itself to reach a conclusion that there had been poor professional performance on the part of the applicant, without hearing any expert evidence to that effect.

67.              The court is satisfied that there is no substance in either of these submissions. To deal with the first part of the submission, to the effect that there was a lack of adequate expertise on the disciplinary panel, due to the fact that there was no principal of a primary school on the panel; the court is satisfied that having regard to the qualifications and experience of the members of the disciplinary panel, it had more than adequate expertise to deal with the issues that were presented to it.

68.              The court is satisfied, having regard to the matters set out by Ms Lynn Ramsay, a director of the Teaching Council, in her affidavit sworn on 25 September 2024, that the members of the disciplinary panel who considered the allegations against the applicant, had the necessary expertise to carry out that inquiry in a competent fashion.

69.              At para. 91 of her affidavit, Ms Ramsay set out the qualifications and experience of the members of the disciplinary panel. Mr Sean O'Neill was twice elected to the Teaching Council, serving from 2016 to 2024. He was a member of the disciplinary committee during that time. He had 24 years of teaching experience at post primary level. He was an assistant principal at the relevant time. Ms Kathleen Burke was also an elected member of the Teaching Council. She had been on the disciplinary committee between 2020 and 2024. She had been teaching at post primary level for 30 years. She had been a deputy principal for 20 years. The final member of the disciplinary panel, Mr Declan Fahie, was nominated to the Teaching Council by the university sector pursuant to s.8 (2)(d) of the Act. He had 20 year's experience teaching at primary school level. He previously acted as the chairperson of the Board of Management of a school and had been lecturing on the Teacher Education Programme in UCD for 18 years.

70.              The court holds that in light of this evidence, the members of the disciplinary panel were more than competent to deal with the matters that came before it in the course of this inquiry, notwithstanding that none of them was a principal of a primary school at the material time.

71.              In the second limb of his submission on this aspect, it was submitted on behalf of the applicant that no expert evidence had been called by the director and therefore there was no basis on which the disciplinary panel could make the findings adverse to the applicant which it had done. Counsel for the director had submitted that as it was essentially an issue that involved interpretation of the circular and whether it was correct to interpret it as meaning that the applicant could not inform the parents of the allegation made by the SNA, they were well placed to decide that issue without the need for expert evidence.

72.              In argument at the bar, counsel for the respondent referred to the dicta of Kearns P in McManus v The Fitness to Practice Committee of the Medical Council [2012] IEHC 350, where the learned judge had stated that he was of the view that the keeping of accurate medical records was a matter of such basic importance to the discharge of the functions of any medical practitioner, that no expert evidence on the topic would have been required by the committee in the course of the inquiry. The learned judge went on to state that the importance of keeping accurate records was a matter of common knowledge to medical practitioners, who would be aware that such notes may later be used in court proceedings or other investigations or enquiries and hence their importance was self evident.

73.              The court accepts that this dictum supports the proposition that it is not always necessary to call expert evidence to establish a matter before a tribunal of inquiry. However, it must be noted that that dictum was an obiter dictum, due to the fact that in that case, expert evidence had actually been tendered before the FPC. Nevertheless, it is a dictum from a very senior judge and accordingly it merits considerable weight.

74.              In O'Neill v Dunnes Stores [2011] 1 IR 325, O'Donnell J (as he then was) stated that it was not always necessary to hear so-called expert evidence, sometimes fanciful and nearly always expensive, on matters that are little more than common sense.

75.              In People (DPP) v Bowe [ 2 017] IECA 250, Ryan P stated as follows at paragraph 104:

104. The law on expert evidence is well established. The courts permit expert evidence in relation to matters that are outside the scope of the knowledge and expertise of the finder of fact, whether judge or jury. The expert opinion evidence must be evidencewhich gives the court the help it needs in forming its conclusions. The evidence is required to be necessary in the limited sense that it has to provide helpful information which is likely to be outside a judge or jury's knowledge and experience...[...].

76.              In McGrath on Evidence, 3rd E dition, para. 6–05, the learned author opines as follows:

Expert evidence is admitted in relation to matters calling for specialised knowledge and expertise on the basis articulated by Kingsmill Moore J in AG (Ruddy) v Kenny [1960] 94 ILTR 185, that:

"The nature of the issue may be such that even if the tribunal of fact had been able to make the observations in person he or they would not have been possessed of the experience or the specialised knowledge necessary to observe the significant facts, or to evaluate the matters observed and to draw the correct inferences of fact".

Thus, the relevant case law makes it clear that expert evidence is appropriate and sometimes necessary, where the trier of fact is dealing with complex technical issues that are outside his or her area of competence or experience.

77.              The court is satisfied that the allegations in this case were neither technical, nor complicated. The court is satisfied that the members of the disciplinary panel had more than sufficient knowledge and experience to enable them to reach a determination in this case without requiring expert evidence on the issue.

(b) Failure on the part of the Disciplinary Panel to refer to the Child Protection Procedures for Primary and Post Primary Schools, 2017.

78.              It was submitted on behalf of the applicant that the disciplinary panel had failed in their decision to make any reference to the 2017 procedures. It was submitted that the applicant had relied on these, along with the circular, as a basis for his decision not to inform the parents. It was submitted that the 2017 procedures also contained an obligation of confidentiality in relation to any disciplinary investigation that may be carried out into any matter concerning the protection of children.

79.              This submission can be dealt with briefly. This ground of challenge is not pleaded in the statement of grounds, so it is not before the court in these proceedings. That of itself, is sufficient to deal with it.

80.              However, lest I am wrong in that conclusion, I will deal with the substance of the submission. The 2017 procedures were not opened in the course of the hearing before the disciplinary panel; nor were they referred to by counsel in her closing submissions on behalf of the applicant; nor were they referred to in the written submissions filed on behalf of the applicant for the purpose of these proceedings.

81.              The 2017 procedures were referred to in the course of a written submission made on behalf of the applicant by his solicitor in a letter dated 19 September 2023. They were also referred to fleetingly in the course of the applicant's evidence before the disciplinary panel. However, this was only done on the basis that the duty of confidentiality in relation to the disciplinary process, was not just to be found in the circular relied upon by the applicant; but was also in other statutory provisions, such as the 2017 procedures.

82.              I am satisfied that the applicant's defence at the hearing was based on the content of the circular. His case was that it mandated him to maintain confidentiality of the disciplinary process that had been instigated following the making of the complaint by the SNA in February 2019, and that that was the reason why he could not, and did not, inform the child's parents of the making of the complaint by the SNA in February 2019.

83.              Insofar as the applicant attempts to challenge the decision of the disciplinary panel on the basis that they did not refer to the 2017 document in their decision, I hold that that submission is untenable because those procedures, while referred to fleetingly in evidence, were not part of the case that the applicant made in defence to the allegation of poor professional performance levelled against him. In these circumstances, it was not incumbent on the disciplinary panel to address this document in their decision.

(c) Failure to give Adequate Reasons.

84.              The duty to give reasons has been examined in many judgments. It has been repeatedly stated that statutory tribunals are not expected to deliver decisions that are akin to a reserved judgment handed down in the High Court, the Court of Appeal or the Supreme Court. In Marques v Minister for Justice 2019 IESC 16, Charleton J. stated that the reasons given need not be extensive or philosophically analytical, but must, instead, be adequate to the situation in which they are required.

85.              The case law clearly establishes that the duty on the decision-maker is to give sufficient reasons for their decision, so that the parties to the dispute, and in particular the losing party, can know what was decided and why it was decided. It should also be apparent from the decision that their submissions and arguments were considered by the decision-maker.

86.              The level of reasoning given must be sufficient to enable the losing party to obtain advice as to whether he has grounds for an appeal, or for a challenge to the decision by way of judicial review proceedings. The furnishing of reasons also enables the appellate court, or the reviewing court, to decide whether the decision should stand on appeal, or when reviewed: see generally Mallak v Minister for Justice 2012 3IR 297; Connelly v An Bord Pleanala 2018 IESC 31; Marques v Minister for Justice 2019 IESC 16; Balz v An Bord Pleanala 2019 IESC 90.

87.              The reasons for the decision reached by the disciplinary panel in this case, have been summarised earlier in the judgment. It is not necessary to repeat those reasons. In circumstances where, despite an enormous volume of documentation, the essential facts were agreed; it was not necessary to make any findings of fact on heavily controverted issues.

88.              The issue before the disciplinary panel was relatively straightforward. It was whether the applicant was correct in his interpretation of the circular, that it mandated that he could not tell the parents of the child of the making of a complaint by the SNA of inappropriate behaviour towards a vulnerable child by the teacher, while the disciplinary process was ongoing.

89.              The disciplinary panel held that that argument could not be made having regard to the wording of the circular. In effect, they held that it was implausible to suggest that the parents of a very vulnerable child should not be informed when an allegation of inappropriate behaviour towards that child had been made by a responsible person, being an SNA.

90.              In his evidence, the applicant had conceded that the allegation made by the SNA was serious in nature. Having regard to the entirety of the decision and, in particular, to the reasons stated therein, the court is satisfied that their decision was not unreasonable or illogical. The court is satisfied that the reasons given by the disciplinary panel were cogent and coherent and accorded with common sense. Their conclusion that the parents of a vulnerable child should be told of the making of the allegation by a responsible person, accords with the standards that sensible people would apply. The logic underpinning the decision, as expressed by the disciplinary panel in its decision, was that a serious allegation had been made concerning a vulnerable young child, who was pre-verbal, and that in these circumstances, a competent principal should have known that the child's parents ought to have been informed of the making of that allegation in a timely manner. Not to do so, was held to have been a serious failure on the part of the principal.

91.              The court is satisfied that there was evidence before the disciplinary tribunal which entitled it to come to the conclusions that it did and for the reasons stated in the decision. The court is satisfied that the stated reasons were neither unreasonable nor irrational in the legal sense.

92.              If the disciplinary panel had agreed with the applicant that it was appropriate to keep the parents in the dark about a credible complaint of abuse of their child for 19 weeks, that could well have been seen as being irrational, both in the legal sense, and by the standards of ordinary people in society.

93.              The court is satisfied that the disciplinary panel made it clear why it had reached the decision that it did. Its essential reasoning on this aspect was set out over 1.75 pages. They set out clearly what they had decided and why they had reached that conclusion. They rejected the applicant's evidence in relation to why he had not informed the parents during the relevant period. They were entitled to reject his evidence when they did not find it credible.

94.              The applicant complained that the disciplinary panel stated that they could not state why he had not told the parents of the allegation made by the SNA. They were entitled to say that they rejected his explanation for his inaction. They were entitled to state that they could not form any opinion as to the true motivation for his inaction. That is perfectly permissible. It is better that a decision maker should say that they cannot say why a person did or did not act in a particular way, rather than speculate as to the motivation for his actions.

95.              In summary, the court is satisfied that on a reading of the entire decision of the disciplinary panel, it is clear what they decided. The reasons why they reached that decision are clearly stated. There is no lack of reasoning in the decision. Accordingly, there is no substance in this ground of challenge.

(d) Delay.

96.              The applicant made a somewhat confusing submission in relation to the issue of delay. He did not allege that he could not get a fair hearing before the disciplinary panel due to the delay in getting the matter on for hearing before that body.

97.              It was accepted that he never made any application to the disciplinary panel to strike out the allegations against him on grounds of delay. That being the case, the applicant cannot now make the case that he got an unfair hearing due to the delay between the events in 2019 and the hearings before the disciplinary panel between November 2023 and February 2024.

98.              While the applicant's solicitors had raised the issue of delay in correspondence with the director's solicitors in advance of the hearing, the applicant did not make any application to the disciplinary panel to seek to have the complaint dismissed because of delay. In Galvin v Commissioner of An Garda Siochana,  [2011] IEHC 486, Hedigan J stated that active participation in a hearing had long been held to be sufficient to deprive an applicant of the right to complain about it subsequently. He went on to state that having accepted and engaged with the process in that case, it was difficult to see how the applicant could turn around and seek to object to it. He stated that in his view the applicant had acquiesced in the procedure and could not then challenge the result.

99.              The court is satisfied that the issue of delay, not having been raised with the disciplinary panel at the substantive hearing, the applicant cannot now seek to rely upon it in these proceedings. While the applicant did seek to raise the issue of delay at the sanctions hearing, it was too late to raise it at that stage as a bar to the substantive hearing.

100.          In argument before this Court, the applicant did not seek to argue that the matter should have been struck out by the disciplinary panel on grounds of delay. He made a different submission, to the effect that there had been a delay of circa three years and ten months in getting the matter to a hearing before the disciplinary panel; while he had been criticised for a far shorter delay of nineteen weeks in telling the parents of the allegation made by the SNA; which was, in reality, an allegation of which they were already aware, having been told of it by the SNA sometime before 11 February 2019.

101.          It is difficult to see the relevance of any delay that there may have been in the two matters, because they were two totally different matters. One was a full-blown disciplinary enquiry which had to follow agreed procedures and had to afford the applicant all the constitutional rights, known colloquially as "Haughey rights", which are associated with the right to a fair hearing.

102.          In this regard, it is noted that in advance of the hearing before the disciplinary panel, the applicant made no less than thirteen written submissions; eight from him, one from the INTO on his behalf and four from his solicitor.

103.          The action required on the other side of the equation, simply required the applicant to inform the parents of the allegation of inappropriate behaviour that had been made by the SNA. A phone call, or an email would have sufficed in that regard.

104.          One cannot argue that because it took over three years for the disciplinary process to come to a hearing, that it was somehow unfair to criticise the applicant for a delay of nineteen weeks in informing the parents of the allegation. They are totally different matters. Accordingly, I hold that this ground of challenge is without substance.

(e) Objective Bias.

105.          After the disciplinary panel had reached its substantive findings that there had been poor professional performance by the applicant, he made a submission at the sanctions hearing that the decision should be set aside on grounds of objective bias due to the fact that a member of the disciplinary committee of the Teaching Council had been sitting beside the mother of the child in the public gallery during the public hearings.

106.          I hold that this ground of challenge is without substance for a number of reasons. First, the applicant never raised this objection during the substantive hearings. If he felt that it was inappropriate for a member of the Teaching Council to sit beside the mother of the child during the hearings, he ought to have made that point when it arose. He should not have waited until he had obtained an adverse decision on the merits before raising the point at the sanctions hearing.

107.          Secondly, the evidence as set out in Ms Ramsey's affidavit, which I accept, is that the person who sat beside the mother of the child, was not involved in the disciplinary process in any way. The members of the disciplinary panel were experienced teachers and educators. They approached their task in a careful and methodical way, as is demonstrated on the transcripts.

108.          The test for objective bias was summarised by Fennelly J in O'Callaghan v Mahon [2008] 2 IR 514, where he stated that objective bias is established, if a reasonable and fair minded objective observer who is not unduly sensitive, but is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision-maker will not be fair and impartial.

109.          It cannot credibly be argued that because a member of the disciplinary committee of the Teaching Council, who was not involved in the disciplinary inquiry, sat beside the mother of the child, that that in some way meant that the disciplinary panel was objectively biased. There is no evidence that the disciplinary panel was, or could have been objectively biased, due to the presence of that person sitting beside the child's mother. This set of circumstances does not satisfy the test set down in the O'Callaghan case.

110.          Having regard to the experience and qualifications of the disciplinary panel, I hold that it cannot be credibly argued that because a member of the Teaching Council sat beside the mother of the child, that that gives rise to objective bias in the sense of having the appearance of having a biased hearing before the disciplinary panel.

(f) Reversal of the Burden of Proof.

111.          The applicant argued that because the disciplinary panel had stated that the applicant had not persuaded them that his motivation for not informing the parents was the confidentiality provision in the circular, that that meant that the disciplinary panel had reversed the burden of proof, by placing the burden on him to establish why he had not informed the parents.

112.          This ground of challenge lacks any substance. In the decision of the disciplinary panel it was clearly stated that the charges of poor professional performance as set out in the notice of inquiry would have to be proven by the director of the Teaching Council beyond a reasonable doubt. Thus it was clearly stated that the burden of proof rested on the director and that the standard of proof was the criminal standard.

113.          In his submissions prior to the hearing before the disciplinary panel, and in his evidence at those hearings, the applicant put forward the case that due to the wording of the circular, and in particular having regard to the obligation to keep confidential any disciplinary process that may follow from the making of a complaint or allegation, he could not have informed the parents of the making of the allegation before the time that he had done so, following receipt by him of legal advice from the school's solicitor and from the IPPN.

114.          Once that explanation had been raised by the applicant, the disciplinary panel was obliged to address it. They could not have ignored it, because it was the applicant's defence to the allegations of poor professional performance levelled against him. Not only were they entitled to address his explanation for his lack of action, they were obliged to do so.

115.          In stating that they had concluded that the applicant had not persuaded them that his motivation for not telling the parents of the allegation, was the terms of the circular, the disciplinary panel were stating their conclusion. They were not reversing the burden of proof, which at all times rested on the director.

116.          As stated earlier, the disciplinary panel was entitled to reject the explanation that had been given by the applicant in evidence as to why he had not informed the parents of the child.

(g) Failure to Take Account of the Once-off nature of the Conduct.

117.          The applicant made a submission to the effect that the disciplinary panel had erred in failing to take account of the mitigating factors such as his long unblemished work record and the fact that the conduct the subject matter of the allegation of poor professional performance constituted a one-off episode or event, when reaching their substantive decision as to whether the applicant had been guilty of conduct of sufficient seriousness to amount to poor professional performance.

118.          In this regard, the applicant relied on the decision of O'Higgins J in the second Ahmed case, being Ahmed v Fitness to Practice Committee of the Medical Council [2024] IEHC 168, where it had been stated that while once-off events could amount to poor professional performance, the key issue was whether the once-off error committed by the appellant in that case, did or did not attain the required threshold of seriousness to constitute poor professional performance: see para. 142.

119.          The learned judge went on to balance a large number of aggravating and mitigating factors to arrive at the conclusion that the conduct complained of did not meet the required threshold to constitute poor professional performance.

120.          Two things need to be noted about that judgment: first, it was a full de novo appeal based on the evidence heard before the Fitness to Practice Committee of the Medical Council. Thus, those findings were markedly different to the circumstances in the present application, which is an application by way of judicial review.

121.          Secondly, the decision reached in that case was very fact specific. The judge went through a large number of factors that were specific to the case before him in reaching his decision that the conduct did not reach the threshold of seriousness to constitute a finding of poor professional performance.

122.          It cannot be argued that just because the allegation of poor professional performance in this case was a once-off occurrence, the disciplinary panel was in some way prevented from finding that it amounted to poor professional performance. That is not supported by the authorities such as Corbally, Ahmed (No.1) or Ahmed (No. 2).

123.          Even though this was a once-off incident, it was open to the disciplinary panel to find that the applicant's failure to inform the child's parents for a period of 19 weeks of the making of the allegation by the SNA in February 2019, constituted poor professional performance. Having regard to the fact that this was an extremely vulnerable child, in respect of whose care a prima facie credible and serious complaint had been made by a responsible person, the disciplinary panel was entitled to find that the applicant's failure to inform the parents of the allegation for that period of time, constituted poor professional performance, notwithstanding that it was a once-off event.

(h) Sanction.

124.          Finally, the applicant submitted that the disciplinary panel had acted irrationally in finding that his conduct constituted poor professional performance, which fell in the mid-range; while ultimately coming to the conclusion that the appropriate sanction was the second lowest sanction that was available, being admonishment.

125.          The court is satisfied that this submission is without substance. In imposing sanction, the disciplinary panel came to the conclusion that the poor professional performance found on the part of the applicant fell into the mid-range. Having regard to the constitutional rights of parents, and in particular to the rights of parents of vulnerable children, this conclusion as to the gravity of the conduct as made by the disciplinary panel, cannot be said to be unreasonable or irrational.

126.          Having found that the conduct amounting to poor professional performance fell in the mid-range, the disciplinary panel proceeded to weigh up the aggravating and mitigating factors when deciding on the appropriate sanction. That was perfectly reasonable. It is done every day of the week in criminal cases when sentence is being passed on a convicted person. The weighing of aggravated and mitigating factors is done so as to ensure that the sanction imposed is fair in all the circumstances of the case.

127.          The court has already summarised the content of the sanctions decision. In that decision the aggravating and mitigating factors were set out in detail. That the disciplinary panel, having carried out that exercise, came to the conclusion that the second lowest sanction was the appropriate sanction, is not inconsistent with their finding that the conduct fell within the mid-range of poor professional performance.

128.          It merely established that considering all the factors in the case, including the applicant's long and unblemished work history, a sanction at the lower end of the scale was appropriate. That finding does not render irrational their earlier finding as to the gravity of the conduct constituting poor professional performance.

Determination.

129.          For the reasons set out in this judgment, the court refuses all the reliefs sought by the applicant in his notice of motion and in his statement of grounds.

130.          As this judgment is being delivered electronically, the parties will have two weeks within which to furnish brief written submissions of not more than 1,500 words in relation to the terms of the final order and on costs.

131.          The matter will be listed for mention at 10.30 hours on 3 April 2025 for the purpose of making final orders.