Mr Justice Iarfhlaith O’Neill asked the minister two months ago to provide a submission by the end of March setting out how its requirement that claimants for ex-gratia payments from the State for historic sex abuse as school pupils must show that their abuser was the subject of a prior complaint.
This condition has been imposed by the State in a scheme it says is in keeping with the 2014 European Court of Human Rights (ECHR) finding in Ms O’Keeffe’s favour.
The ECHR required the State to pay her €30,000 after finding it had a vicarious liability for the abuse she suffered at the hands of her primary school principal Leo Hickey in the 1970s.
However, solicitors for day school sex abuse victims, and other legal experts, have argued that this condition is based on a narrow interpretation of the ruling.
They say the judgement found the State liable not solely because there had been previous complaints of sex abuse by Hickey, but also over its failure to set up a proper structure to protect children from sex abuse that was already well known to be happening in schools.
Last year, Mr Bruton appointed Mr Justice O’Neill as an independent assessor to consider appeals where the State Claims Agency (SCA) deemed claims for payment were ineligible. The agency was told by the Government in 2015 to make ex-gratia payments up to €84,000 in the case of claimants who were abused at schools and had previously dropped cases against the State, but only where cases were not statute-barred and evidence of a prior complaint was put forward.
Up to the beginning of March, 14 of the 19 claimants whose cases had come before the judge for review were challenging the linking of their ineligibility to absence of evidence of prior complaints. The case being made on their behalf was that such grounds for rejection were inconsistent with the European Court of Human Rights judgement.
On this basis, Mr Justice O’Neill decided he needs to determine if these challenges were valid and wrote to Mr Bruton at the start of March. He asked him to send a written submission by the end of March on whether the condition requiring evidence of a prior complaint of child sex abuse to be eligible for an ex-gratia payment was consistent with, and a correct implementation of, the O’Keeffe judgement in the European court.
Asked by the Irish Examiner about the status of this exercise, the Department of Education issued a response issued last Friday.
“The minister has responded to the independent assessor and, on April 27 last, sent him a submission on the State’s interpretation of the European Court of Human Rights judgement,” a spokesperson said. He said the State’s implementation of the O’Keeffe judgement has been set out in action plans submitted every six months, which were accepted by the Council of Europe’s Committee of Ministers.
The Irish Examiner also asked the department for the specific aspects of the court’s 2014 judgement in the O’Keeffe case on which it relies for its interpretation that now requires claimants to prove prior complaints if they are to qualify for payments through the SCA process. However, this was not addressed in the response received yesterday.
Government criticised for ruling intepretation
The January 2014 ruling of the European Court of Human Rights (ECHR) brought an end to Louise O’Keeffe’s 15-year run of attempting to get civil redress, writes Niall Murray.
It came more than 40 years after Leo Hickey’s conviction for abusing her in the Co Cork school where he was her principal. The general view was that the case opened the door for redress for some of the hundreds of people who previously brought civil proceedings against the State for sexual abuse in publicly-funded schools, including those who bowed to State pressure to drop their cases or face being pursued for costs if their actions failed.
But the Government’s interpretation of the ECHR judgement has been the subject of repeated criticisms by victims’ solicitors for victims and by others. They claim the State is being selective in the aspects of the ECHR ruling it relies on for a settlement scheme administered by the State Claims Agency.
These views were made known in 2015 to the Council of Europe’s committee of ministers by the Irish Human Rights and Equality Commission, UCC’s Child Law Clinic (which provided free aid to Ms O’Keeffe’s legal team), and Atheist Ireland. In essence, they argued, the ECHR finding that the State had some liability hinged on the absence of a broad system of protection against the levels of abuse in schools that was known to the State for decades, rather than the fact that complaints had previously been made about Ms O’Keeffe’s abuser.
While the committee decided Ireland’s response was reasonable and flexible, and that anyone unhappy with the outcome had recourse to the courts, a number of subsequent claimants were the subject of High Court rulings that said their cases were bound to fail.
These outcomes were cited in further submissions 18 months ago, asking that the committee of ministers refer the question of interpretation back to the ECHR. However, consideration of the request may be well down the priority list on the committee’s order of work.
In the meantime, several victims of proven child sex abuse in schools might take their cases to the ECHR.
The outcome of any consideration of the question by Mr Justice Iarfhlaith O’Neill, the independent assessor of cases ruled out for payment by the State Claims Agency settlement scheme, is uncertain.
A fourth option is for a political resolution to the matter, with a Fianna Fáil private members’ motion likely to be heard over the coming month in which the Government would be asked to drop the “prior complaint” requirement for eligibility for ex-gratia payment to school sex abuse victims.