A mother has failed to get the permission of the High Court to challenge a requirement that her son wear a face mask in order to sit the Leaving Cert, which begins next week.
Mr Justice Charles Meenan said the mother failed to provide an independent medical report to support her claim that her son's migraine would be agitated if he had to wear a mask all day.
She had failed to establish she had an arguable case, and he therefore had to refuse her application. The boy cannot be named by order of the court because he is a minor.
Mandatory mask requirement
Last week, the mother, on his behalf, sought leave to seek orders including the quashing the mandatory mask requirement and allowing him sit the exams without one.
The court said the application should be on notice to the respondents in the case, the State Examination Commission (SEC) and the Department of Education.
It was adjourned until Thursday when Mr Justice Meenan said, in view of the proximity of the start of the Leaving Cert written exams on June 9th, he would deal only with the issue in relation to face masks.
He adjourned to June 16th an additional claim that any accredited grade the boy receives should provide the school liaise with private tutors he had been taught by as a result of him being suspended since last September for refusing to wear a mask in the school common area,
His mother argued, among other things, the Government's road map for dealing with Covid-19 last year initially said it was inappropriate that masks be worn by secondary school students. But within a week, she said, following representations from the Teachers Union of Ireland, the requirement was then put in place.
She said while they were formally advised on April 8th last of the mask requirement, she had been unable to find a barrister who was willing to assist them and the earliest she could bring the case personally was last week.
GP not forthcoming
They could not get specific personal evidence in relation to the claim her son's migraine would be agitated by wearing a mask because when they approached the family GP it was not forthcoming. The GP, in doing so, was engaging in a balancing exercise between the risk of causing migraine as against the risk of catching Covid, she said.
However, she had provided the court with reports from agencies including the World Health Organisation and the European Centre for Disease Prevention and Control which lists a side effect from prolonged wearing of face coverings as headaches and migraines.
The school was fully aware of the issue pre-Covid when her son was frequently sent home suffering from migraine, she said.
Under the Constitution and the European Convention her son had a right to non-interference with bodily integrity and the fact he was being required to wear a mask all day which will cause difficulties was not a proportionate response from the respondents.
There were other ways of complying with health advice including ensuring children are at least, or more than, two metres apart, she said.
Eileen Barrington SC, for the respondents, said the mother had failed to meet what is a low threshold for granting leave to bring the challenge including the lack of specific medical evidence.
Last minute case
She had brought the case at the last minute in circumstances where there had been extensive engagement for months between her and the State parties.
The school had done its best to accommodate the boy by providing him with a screen, so he would not have to wear a mask in class, but he was suspended when he refused to wear a mask in the common areas, counsel said.
He was entitled to return if he complied and the issue arose again when he was about to do his practical music exam when he was required to wear a mask.
As far back as last August, the school had advised parents masks would be required, she said
Mr Justice Meenan said mother had very fairly said the family GP had declined to provide an exemption cert which drops the mask requirement in certain circumstances and medical conditions.
While she had provided certain generic academic material in relation to the use of face masks there was no independent medical expertise provided. It was no sufficient for the mother herself to say his migraine is exacerbated as she has no medical expertise, he said.