School Bullying and the Law in the Republic of Ireland David Quirke BA, LLM

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1 School Bullying and the Law in the David Quirke BA, LLM CONTENTS 1. Introduction. 2. The Role of the School.. 3. Criminal Law 4. Civil Law. 5. Cyber-Bullying Children s Rights 7. Conclusion.

2 Introduction Bullying has always been part of school life in Ireland and this problem is experienced in schools around the world. In Ireland the principal guideline for bullying in schools is the Department of Education and Science Guideline on Countering Bullying Behaviour in Primary and Post Primary Schools The Guidelines define bullying as, repeated aggression, verbal, psychological or physical conducted by an individual or group against others. The Guidelines also state that isolated incidents of aggressive behaviour are not considered as bullying unless they are systematic or continuous. This booklet aims to provide students and parent s information on the legal position in relation to school bullying. The legal information will be on the following; the role the school plays, criminal law, civil law, cyber-bullying and children s rights. The Role of the School Most bullying takes place while the child is on the school premises and therefore the school is in the best position to deal effectively with the issue. The Education Act 1998 states that the responsibility that children s needs are met rests with the schools board of management. Schools in Ireland do not have a set of laws to follow in cases of bullying. Since the Education (Welfare) Act 2000 all schools in Ireland are under a legal duty to have a written code of behaviour. The code of behaviour states, the standards of behaviour that shall be observed by each student attending the school; the measures that may be taken when a student fails or refuses to observe those standards;

3 procedures and the grounds for removing a suspension imposed in relation to a student. The 2000 Act does not make any reference to the term Bullying. Schools in Ireland usually have an Anti-Bullying Policy as part of their code of behaviour. The Policy will give information about the school s ethos regarding school bullying. The Policy should provide information on how the school plan to deal with the issue of bullying when it arises. The Policy should always have information on how to investigate and resolve incidents of bullying. In Ireland there is no legal requirement for schools to either have an anti-bullying policy or resolve incidents of bullying. Criminal law Although there is no specific law against bullying in Ireland, certain types of bullying behaviour are against the law. There are three specific types of bullying which come under the scope of the Non-Fatal Offences Against the Person Act 1997; any physical contact, threats and harassment. If a student is physically beaten or has been put in a reasonable belief of immediate force, the perpetrator will be guilty of assault under section 2 of the 1997 Act. When a student has threatened to kill or cause serious harm to another and expects that student to believe the threat, this may constitute an offence under section 5 of the 1997 Act. If a student is harassed by another student it may constitute an offence under section 10 of the 1997 Act. A child who is under the age of criminal responsibility cannot be convicted of any of the above offences. The age of criminal responsibility in the is 12 years

4 old. Parents and students should immediately contact An Garda Síochána if any of the above offences have taken place. Civil Law Under civil law, schools and the board of management owe a duty of care to the students while they are at school. What this means is that a school will be liable in negligence if they do not protect students from any injuries which they should have reasonably prevented. For a school or teacher to be held negligent, it must be shown that they did not protect the child as a prudent parent would protect their own child in the same circumstances. The duty to supervise children at school begins when the child is allowed on to the school premises. When a student applies direct physical contact upon another student without consent it may constitute battery under civil law. If an act by a student places another student in reasonable apprehension of immediate battery it may constitute an assault under civil law. There is no age of responsibility under civil law. Cyber-Bullying Cyber-bullying is fast becoming the most dangerous form of school bullying. Cyberbullying has been defined as, an individual or a group wilfully using information and communication involving electronic technologies to facilitate deliberate and repeated harassment or threat to another individual or group by sending or posting

5 cruel text and/or graphics using technological means. Using mobile phones and computers a child may cyber-bully in the following ways; text messages (SMS), s, social networks, instant messaging, gaming websites, voice calls, chat-rooms, and video messages (MMS). Ireland does not have any legislation which expressly deals with the issue of cyberbullying. However Ireland does have legislation which may cover certain aspects of cyber-bullying. Where a victim of cyber-bullying is bullied over their phone it may constitute an offence under the Non-Fatal Offences Against the Person Act The 1997 Act states a person can be harassed through a telephone or by any means this can be construed to include cyber-bullying. The 1997 Act can also include cyberbullying where a child is threatened. Similarly the Communications Regulations (Amendment) Act 2007 may be used in cases of cyber-bullying and in particular bullying by use of telephone. Under civil law a student may bring a case for assault if the cyber-bullying places the student in reasonable apprehension of immediate violence. One issue which may be problematic is that the cyber-bullying must place the student in immediate apprehension of battery, which may be difficult to prove. Intentional infliction of emotional distress may also be actionable in cases of cyber-bullying. Civil proceedings in defamation may be brought where a student is cyber-bullied in certain situations.

6 Online bullying, in theory should make it easier to obtain evidence of bullying as all online activity is saved and logged somewhere in cyberspace. The Gardai can make requests to Irish websites for information on any alleged cyber-bullying. Regarding cyber-bullying that takes place on websites outside this country, these companies do not have the same legal obligations to give this information to the Gardai. This makes it more difficult to track the online bullying occurring on these websites. Any child who is subject to cyber-bullying should keep all and any evidence of cyberbullying including any; SMS, MMS, online messages, photographs or any other offensive materials. Children s Rights Children s rights under Irish law both Constitutional law and under statute are limited. Article 42 of the Irish Constitution guarantees a right to education for Irish children. Article 42 states that, [t]he state shall, however as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. The Article states that children, who are in education provided by the State must receive a minimum standard of education. Research has shown that when a child is bullied their education, moral, intellectual and social are not of a certain minimum standard required under the Article. The Constitutional right to education is given support under statute. The object of the Education Act 1998 is, to give practical effect to the constitutional rights of children

7 as they relate to education. Another object of the 1998 Act is that there must be a level and quality of education appropriate to meet the needs and abilities of the children. When a child is being bullied in school it is submitted that they are not receiving a quality of education appropriate for their needs. Ireland has ratified agreements for the promotion and protection of Children s rights. The United Nations Convention on the Rights of the Child 1989 (CRC) is the most significant. The main Article which gives children the right to be educated without violence is Article 19 which states, [p]arties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Conclusion Although there is no anti-bullying legislation in Ireland there are legal remedies available to aggrieved students and parents under Irish law. The Non-Fatal Offences Against the Person Act 1997 can be used in incidences of physical abuse, threats, and harassment. Also a student or parent can sue under the Tort of negligence if it can be shown that the school breached their duty of care to protect a student while at school. In relation to cyber-bullying there is also legal recourse under the Non-Fatal Offences Against the Person Act 1997, which covers harassment over the telephone and through other means.

8 It is a matter of urgency that the legal issue surrounding school bullying be addressed. The NABC would support the introduction of anti-bullying legislation to help combat the epidemic of school bullying in all its forms. For more information please contact This booklet does not purport to be legal advice and is for information purposes only. You should seek legal assistance from a qualified solicitor on any legal matter.

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