The Government is only allowing claims under an ex gratia payment scheme from victims of child sexual abuse at day schools if they can provide evidence their abuser had been the subject of a prior complaint.
This has been criticised as too narrow an interpretation of the 2014 judgment in favour of Ms O’Keeffe, in her case against the State for the abuse she suffered by her primary school principal, Leo Hickey, in Cork in the 1970s.
While it was shown that there had been previous complaints about Hickey abusing other children, critics of the Government position say the European Court of Human Rights (ECHR) also apportioned blame to the State for not having sufficient mechanisms for such complaints to be brought in spite of its knowledge of sexual abuse in schools long before Ms O’Keeffe’s abuse.
On these grounds, several people who had their cases rejected by the State Claims Agency under a Government-approved scheme for people sexually abused at school appealed to Mr Justice Iarfhlaith O’Neill. The retired High Court judge was appointed by Mr Bruton as independent assessor in such cases last November.
Mr Justice O’Neill wrote to the minister in March as he wanted to determine how the O’Keeffe judgment was being interpreted. Specifically, he was trying to assess if requiring evidence of a prior complaint of child sexual abuse against a claimant’s abuser to the school authority is consistent with the European ruling.
Although he had asked for a submission by the end of March, it was only sent by Mr Bruton at the end of April, as reported by the Irish Examiner last week.
In that submission on behalf of the State, which the minister has now published, he points to acceptance in 2016 by the Council of Europe’s committee of ministers of how the Government has responded and implemented the ECHR judgment. The response was assessed after 2015 submissions claiming the ECtHR apportioned liability for Ms O’Keeffe’s abuse to the State partly due to the absence of a system to help protect children from such abuse in schools, and not just because of failure to act on a previous complaint.
Mr Bruton’s submission to Mr Justice O’Neill points out that the committee of ministers said in 2016 that “the criterion of a prior complaint of sexual abuse to have been made and not acted upon appears to have a reasonable link to the violations found in this [the O’Keeffe] case”.
In the submission, prepared with advice from the attorney general and senior counsel, Mr Bruton describes as wrong the alternative interpretation of the judgment “which suggests that the court has imposed strict liability on the State such that there has been an automatic breach of the Article 3 right of every child who was a victim of sexual abuse in a day school in Ireland, at least in the years prior to 1973”.
“Such a development would have been contrary to all ECHR authority. Such a radical position would have been made absolutely clear by the ECHR,” he wrote.