Human rights watchdog blasts State's failings on redress for child abuse victims

In 2014, Cork woman Louise O’Keeffe won a landmark ruling at the European Court of Human Rights following a 15-year legal battle through the Irish courts as she sought to establish the State’s vicarious liability for her personal injuries as a result of the abuse she suffered in her national school in the 1970s. File picture: Dan Linehan

Ireland's human rights watchdog has told the Council of Europe that Ireland is failing survivors of sexual abuse in schools yet again by its "partial and reluctant" attempts at redress and its lack of clarity over a replacement scheme.

The Irish Human Rights and Equality Commission (IHREC) made its comments in a submission to the council on the eve of the second anniversary of the closure, for review, of the redress scheme for those abused in schools prior to 1992.

In the submission, IHREC slammed the lack of urgency in addressing the current situation, claiming "it is clear that the State's concern is to prevent a 'flood of claims', and not to offer redress to its citizens whose childhoods were shattered by sexual abuse."

Survivors had previously been asked to demonstrate that their abuse happened after a prior complaint about their abuser had been made, and not acted on, even if they had secured a conviction. 

In early 2019, it emerged that not one applicant to the scheme had been paid and Prof Conor O’Mahony of the Child and Family Law Clinic at University College Cork argued this prior complaint criteria had no basis in the Louise O’Keeffe judgment, which was based on “systemic failure to mitigate the risk of abuse rather than a specific failure to respond to a complaint".

Landmark ruling

In 2014, Cork woman Louise O’Keeffe won a landmark ruling at the European Court of Human Rights following a 15-year legal battle through the Irish courts as she sought to establish the State’s vicarious liability for her personal injuries as a result of the abuse she suffered in her national school in the 1970s.

With no replacement redress scheme in place, IHREC has now weighed in with a highly critical submission to the council, accusing Ireland of trying to keep any new scheme "as narrow as possible".

In its latest submission, IHREC said it was "concerned the committee may be given the incorrect impression, from the information supplied by Ireland, that the question of reparation for victims of historic abuse in schools has been largely resolved".

In fact, the State's operation of the scheme has compounded the situation as victims are now unable to obtain even such limited satisfaction as an award under the scheme might afford them.

"In the absence of specific assurances as to how it will be operated (including who will be eligible and how eligibility will be determined), Ireland's imprecise commitment that a 'new or revised' scheme will be commenced in the third quarter of 2021 offers potential applicants little consolation."

IHREC said it was concerned the new scheme "will be a very narrow one". 

It said the State's "determination to make the revised scheme as narrow as possible" was illustrated by its submissions in a High Court case – BC v Minister for Education and Skills, Ireland and the Attorney General – which is scheduled to be heard this month.

IHREC also said in the submission that "a requirement that every applicant to the new scheme show how an entirely hypothetical mechanism of oversight would have had a real prospect of saving them from sexual abuse is legally unsustainable." 

It said this approach was "redundant" given the earlier EU ruling that Ireland had failed to put in place effective mechanisms of child protection in schools here.

IHREC said the execution of that earlier judgment by Ireland had been "reluctant and partial, and is likely to remain so".

'Major structural problem'

"That even the inadequate redress scheme established by the State has now been suspended points to a major structural problem," it said. 

"The fact that the question of execution [of the judgment] remains live more than seven years after judgment was delivered demonstrates that the mechanism of standard supervision is inadequate."

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Responding to the submission, Prof O'Mahony, who is also the Government-appointed Special Rapporteur on Child Protection, tweeted: "Tomorrow is the 2nd anniversary of the decision on the Independent Assessor that the ex gratia scheme was incompatible with the O'Keeffe judgment. The scheme remains closed and under review – and there are serious concerns that more restrictive criteria are in the pipeline."

Two taoisigh have issued formal apologies for State failings regarding abuse of children in schools, while the State is currently trying to finalise a form of redress for those who had been in mother and baby homes.

Sinéad Gibney, chief commissioner of the IHREC, said: “As the Government is preparing to publish its proposed redress scheme for victims of mother and baby homes, it’s frankly shameful that seven years after Louise O’Keeffe won her legal battle for redress for survivors of sexual abuses in schools, the State continues to deny access.

“Almost two years to the day after the report of the independent assessor was published, there remains no redress mechanism due to the ongoing suspension of the previous, unsatisfactory scheme.

“The Government’s ongoing narrow interpretation of the O’Keeffe case since 2015 is depriving people who suffered sexual abuse as children within our national school system of an effective remedy. That deprivation of justice looks ever starker as victims grow older.

“What use is a formal State apology to victims, when the actions following it ring so hollow?”