Waiting on redress

Many survivors of historic child sexual abuse in primary and secondary schools have not yet received redress from the State, despite the passage of more than ten years since Louise O’Keeffe’s landmark win in the European Court of Human Rights, writes Áine Bhreathnach

The Irish Human Rights and Equality Commission (IHREC) continues to push for the immediate roll-out of a fair, non-discriminatory, and accessible State redress scheme that fully implements the judgment of the European Court of Human Rights (ECtHR) in O’Keeffe v Ireland. 

In the meantime, survivors continue to come forward seeking information on their legal options, including their right to redress, most recently following the publication the Report of the Scoping Inquiry into Historical Sexual Abuse in Schools Run by Religious Orders.

The O’Keeffe case 

Louise O’Keeffe was sexually assaulted in 1973 by Leo Hickey, the school principal at Dunderrow National School, Co Cork. In 1996, complaints were made to the gardaí regarding abuse at Dunderrow. 

Hickey pleaded guilty in 1998 to 21 sample charges relating to sexual abuse of girls under his care and was sentenced to three years in prison. 

More than 20 years ago

In 1998, Louise O’Keeffe commenced legal proceedings against the State. However, the courts in Ireland ruled against her, leaving her with no option but to appeal the Supreme Court judgment of December 2008 to the ECtHR.

The Irish Human Rights Commission (the predecessor to IHREC) intervened as third-party intervener (the Strasbourg equivalent to amicus curiae) before the ECtHR. 

In her complaint to the ECtHR, O’Keeffe argued that the State had failed to structure the education system so as to protect her from abuse (article 3 of the European Convention on Human Rights) and that she had not been able to obtain recognition of, and compensation for, the State’s failure to protect her (article 13). 

Ten years ago

In 2014, Louise O’Keeffe won her case before the ECtHR, and the court ruled: “When relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware, given its inherent obligation to protect children in this context, of potential risks to their safety if there was no appropriate framework of protection. This risk should have been addressed through the adoption of commensurate measures and safeguards.” 

In other words, by failing to put in place adequate child-protection measures until 1991 (for primary schools) and 1992 (for secondary schools), the State had a stand-alone culpability for breach of convention rights, independent of any other actor (whether teacher, board of management, religious order, etc).

In light of the ECtHR judgment, Ireland was required to undertake specific measures in respect of Louise O’Keeffe, as well as general measures to vindicate the rights of other victims of sexual abuse in day schools prior to 1991/1992, including to redress. 

2024 – what progress?

Ten years after the ECtHR judgment, the State continues to fail to implement O’Keeffe v Ireland, as it has failed to introduce appropriate general measures to provide redress to survivors of historic child sexual abuse. 

While, in the past decade, the State has introduced two ex gratia schemes, both have been fundamentally flawed, since they have contained unfair and arbitrary conditions for entry to the schemes. 

The first ex gratia scheme, which opened in 2015, required survivors to show proof of a prior complaint against their abuser before they could be admitted to the scheme. By 2017, 50 applications had been made and, at first instance, all were refused.

Under the ex gratia scheme, applicants were entitled to appeal the first instance negative decision to an ‘independent assessor’. The State appointed Iarfhliath O’Neill (a retired High Court judge) to this role. 

In July 2019, he concluded that the precondition of proof of a prior complaint involved an inherent inversion of logic and a fundamental unfairness to applicants. The scheme was scrapped and not replaced until 2021.

The second ex gratia scheme opened on 21 July 2021 for two years only. 

It also contained unreasonable and unfair preconditions: first, on or before 1 July 2021, the applicant must have instituted proceedings against the State (that is, proceedings that were doomed to fail since the Supreme Court had held in Louise O’Keeffe’s case that the State could not be vicariously liable for the actions of teachers who are employed by boards of management/religious orders); and, secondly, the ‘real prospect test’. 

This scheme closed in July 2023. At this time, the State has no scheme open to survivors of historic abuse, leaving survivors with no option but to seek legal advice on how to vindicate their right to redress as directed in the judgment of the ECtHR in O’Keeffe v Ireland. 

Litigation and reporting

Since 2014, IHREC has made seven submissions to the relevant committee in the Council of Europe that supervises states’ failure to properly implement judgments of the ECtHR. 

In these submissions, IHREC has outlined the State’s ongoing failure to comply with the judgment of the ECtHR, specifically on the State’s failure to introduce a fair and accessible redress scheme. 

IHREC has intervened as amicus curiae in two sets of High Court proceedings where survivors challenged the State’s refusal to admit them to the ex gratia schemes: PD v Minister for Education, Ireland and the Attorney General in December 2022, and KW v Minister for Education, Ireland and the Attorney General in May 2024. 

These proceedings were settled by the State, and we are also aware of other cases that have settled. In all of these cases, 

IHREC understands that each of the litigants received €84,000 – that is, the amount of redress paid by the State under the ex gratia schemes and also the amount paid by the State to Louise O’Keeffe. 

Where are we now?

The Report of the Scoping Inquiry is a shocking account of the nature and extent of the depravity visited on children in Irish schools. There is much to be considered in it. However, it is crucial that it should not further delay survivors’ right to State redress. 

The ECtHR was explicit and clear on the stand-alone responsibility of the State – and its failure – to children who suffered sexual abuse in schools.

It stated as follows on the State’s liability: “The State had to have been aware of the level of sexual crime against minors through its prosecution of such crimes at a significant rate prior to the 1970s. A number of reports from the 1930s to the 1970s gave detailed statistical evidence on the prosecution rates in Ireland for sexual offences against children... 

“When relinquishing control of the education of the vast majority of young children to non-State actors, the State should have adopted commensurate measures and safeguards to protect the children from the potential risks to their safety through, at minimum, effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body.” 

Áine Bhreathnach is senior solicitor at IHREC.