Introduction
The Irish Human Rights and Equality Commission (IHREC) has told the Council of Europe’s highest body, the Council of Ministers, that a new state redress scheme in Ireland designed to support survivors of sexual abuse in schools, still has a number of significant flaws that must be remedied. With this redress scheme, the Irish State is continuing to fail survivors of child abuse more than seven years after the European Court of Human Rights (ECtHR) judgment was won by Louise O’Keeffe.
O’Keeffe V Ireland
A redress scheme was implemented after the case of O’Keeffe V Ireland. Ms. O’Keeffe was one of many children who were sexually abused by their school principal in 1973. After complaints against the teacher were ignored by the school for several years, the abuse came to the attention of the Irish authorities in 1996, when the perpetrator was charged with 386 criminal offences related to the abuse of 21 former pupils (Casey, 2021).
O’Keeffe brought a civil claim in the Irish courts, but the State denied that it was liable for the abuse that occurred. The case then went to the Irish supreme court, where they upheld the previous judgement negating any responsibility for the abuse (O’Keeffe V Hickey [2008]). Subsequently, O’Keeffe brought the case to the European Court of Human Rights, claiming that the State had violated the European Convention of Human Rights (ECHR) by failing to protect her from sexual abuse in the school and by not having an effective remedy against the State, who failed to protect her. In 2014, the Grand Chamber of the ECtHR ruled that the Irish State had a positive obligation to protect against any potential risks of child abuse in primary schools, and had failed to execute this obligation because they did not put in place any child protection mechanisms when they ceded control of the primary schools to the Church. This constituted a violation of Article 3 of the ECHR, and the failure of the Irish State to provide Louise O’Keeffe with an effective remedy violated Article 13 (O’Keeffe V Ireland, [2014]).
Implementation of the Judgement
Following the case, the Irish government adopted a narrow interpretation of the 2014 ECtHR judgement, meaning the redress scheme has been under constant scrutiny from Irish NGOs, legal organisations and the survivors themselves. Following the judgement, the Government established a redress scheme that would provide compensation to other survivors of abuse in primary schools, but imposed a condition stating that applicants had to demonstrate that their abuse had occurred in the aftermath of a prior complaint of abuse that was not responded to (CLC, 2021). This prerequisite was not in line with the terms of the O’Keeffe case, and in 2019 the Independent Assessor ruled that the “prior complaint” condition was incompatible with the ECtHR judgement in O’Keeffe (CLC, 2021). Judge Iarfhlaith O’Neill concluded that the State misinterpreted the Court’s judgment and that this resulted in the denial of any access to redress for many victims of child sexual abuse. Judge O’Neill ruled that the State’s interpretation represented “a fundamental unfairness to applicants” and involved “an inherent inversion of logic”, because of its insistence that survivors of sex abuse in primary schools need to prove that there was a complaint made to authorities about their abuser before their abuse took place (O’Kelley, 2019).
Despite national scrutiny and calls to widen the provisions of the redress scheme, the scheme remains unfoundedly narrow and continues to force many victims to go through the lengthy court process to secure justice, seven years after the judgement was given. The narrow interpretation has seen only 7 cases settled by the State to date, with only 19 applications having reached the Independent Assessor since its announcement in July 2015 (HIREC, 2019) Furthermore, in a letter published in December 2021, IHREC set out 3 significant concerns around the redress scheme that must be addressed in order to obtain full justice:
- The redress scheme is only open to victims who sued the State before 1st July 2021 – This is a date chosen at random and provides the logic that victims who sued the State before this date are more deserving of redress than those who did not. Access to justice should not be determined on whether a person came forward with their experience prior to a certain date.
- The scheme does not provide a sufficient compensation for survivor’s legal fees – to be eligible to be included in the scheme, applicants must have started legal proceedings prior to July 2021. This fails to make adequate provision for the legal costs which survivors have incurred. Applicants are eligible for only €4,000 towards legal costs— which are likely to be higher. This means for numerous people that the compensation given by the state will be spent on legal fees.
- It places the burden on survivors to explain how their abuse would have been prevented – Applicants are obliged to show how if the Department of Education Guidelines for Procedures for Dealing with Allegations or Suspicions of Child Abuse, which were established after the O’Keeffe ruling, had been in place at the time the sexual abuse occurred, there would have potential to alter the outcome or mitigate the harm suffered. If the State Claims Agency is not satisfied with the hypothetical situation the survivor provides, they can deem them not eligible for redress. The burden should not be on the victim to prove a hypothetical situation in order to be deemed worthy of support and justice. On this point, the IHREC stated that:
There can be no objective justification for subjecting people whose childhoods were shattered by sexual abuse to such an insensitive exercise, which can be based on no more than a series of hypotheticals. Placing the onus on victims to explain how their abuse would have been prevented is redundant when, as the judgement of the Grand Chamber makes clear, Ireland failed to put in place effective mechanisms of child protection in Irish schools (HIREC, 2018).
The unjust interpretation of the jugdement can be seen as the Irish State withholding redress to the many survivors of sexual assault. They are failing to fulfil their obligation to provide support for the survivors, just as they have failed to do so since 1973. As a result of these failings, the IHREC has now asked the Council of Europe to transfer this case to an “enhanced supervision” process (Keena, 2021). This would require the Council to more closely monitor Ireland to ensure it is implementing the 2014 O’Keeffe ruling in line with their standards.
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission, stated:
Redress for children subjected to life-changing abuses by trusted adults in what should have been a safe place of learning, is being treated by the State as a tick box exercise rather than one which responds to survivors’ needs. Once again, Ireland is failing to adopt the humility and respect required in dealing with victims of State wrongdoing, and instead taking a defensive position, informed by suspicion and distrust. As victims grow older, we cannot allow the State to run down the clock on their right to effective redress (ibid).
This Irish government is also currently revising another redress scheme for the survivors of the Mother and Baby Homes, so it is imperative they adequately execute their obligation to protect their people and provide them with the compensation they deserve. The judgement must be implemented as a whole, not merely in a narrow reading, ensuring no one is without recourse to justice.
Sources and further reading:
News Articles
Colm Keena, “State ‘withholding redress’ from school abuse survivors seven years after court ruling.” The Irish Times (Dublin, 07 July 2021) Available at: https://www.irishtimes.com/news/crime-and-law/state-withholding-redress-from-school-abuse-survivors-seven-years-after-court-ruling-1.4614230
Emma O’Kelly, “Judge rules State misinterpreted ECHR abuse ruling” RTE (Dublin, 9 July 2019) Available at: https://www.rte.ie/news/2019/0708/1060862-echr-ruling-misinterpreted/
Jess Casey, “Flaws in Ireland’s redress scheme for school sexual abuse victims raised in Europe” The Irish Times (Dublin, 20 December 2021) Available at: https://www.irishexaminer.com/news/arid-40769496.html
See the article Survivors of Abuse in Irish Mother and Baby Homes Face Further Injustices Through Government Report and Redress Scheme on our website ghrd.org
O’Keeffe V Hickey [2008] IESC 72 (SC) Available at: file:///C:/Users/Technician/Downloads/43450_45fa3e2b7095419b9b6b92e47e6e7a85.pdf
O’Keeffe v. Ireland, App. No. 35810/09 (ECtHR, 28 January 2014)
Reports
Child Law Clinic, Redress of Survivors of Sexual Abuse in National School (CLC – 2021). Available at: https://www.ucc.ie/en/childlawclinic/redressofsurvivorsofsexualabuseinnationalschool/
Irish Human Rights and Equality Commission, New Redress Scheme for Victims of Historic Schools Abuses Continues to Fail Victims. (IHREC – 19 December 2021) Available at: https://www.ihrec.ie/new-redress-scheme-for-victims-of-historic-schools-abuses-continues-to-fail-victims
Irish Human Rights and Equality Commission, Submissions to the Independent Assessor by the Irish Human Rights and Equality Commission (IHREC – 2018) available at: https://www.ihrec.ie/app/uploads/2018/09/Submission-by-IHREC-to-Independent-Assessor-1-2.pdf
