Special Rapporteur highlights 'significant flaws' in schools redress scheme

Professor Conor O'Mahony called on Government to remove the condition of litigation against the State prior to July 1, 2021, and to amend the scheme to make provision for all legal costs. Picture: Tomas Tyner

Significant flaws remain with the State’s revised redress scheme for victims of sexual abuse in schools, according to the outgoing Special Rapporteur on Child Protection.

Professor Conor O’Mahony made the comments in his last annual report as special rapporteur, in which he criticized elements of the revised ex-gratia scheme, re-opened after the State was found to be misinterpreting a landmark ruling.

Prof. O’Mahony critised the delays in re-launching the scheme in both his 2020 and 2021 annual reports. Re-opened officially in July 2021, the revised scheme still suffers from two significant flaws despite the removal of the “prior complaint” condition, he notes.

The State’s ex-gratia scheme for survivors of abuse in national schools was set up in 2014 after the European Court of Human Rights ruled that the State failed to protect Cork woman Louise O’Keeffe, who was abused at her primary school in the 1970s.

In 2019, it emerged that the State had paid nothing to survivors through the scheme. An independent review by retired High Court judge Iarfhlaith O’Neill found that its terms and conditions were too onerous for survivors to meet.

Justice O’Neill found that this condition was incompatible with the European Court of Human Rights (ECtHR) ruling in the Louise O’Keeffe case.

While the revised scheme removes the “prior complaint” condition, applicants to the ex-gratia scheme are now required to have initiated legal proceedings against the State prior to July 1, 2021. This condition is “just as much at variance” with the original judgment as the condition of ‘prior complaint’, Prof. O’Mahony noted.

“The entitlement to redress derives from the fact that children were sexually abused in a school system in which the State had failed to implement effective safeguards.” 

The rights of those who had not instituted court proceedings prior to 1 July, 2021, were violated in precisely the same way as the rights of those who had instituted proceedings. 

“This condition is therefore inherently discriminatory and at variance with the O’Keeffe judgment.” The cut-off date of July 1, 2021 was announced three weeks after it had passed, making it impossible for applicants to adjust their position, he added.

“It is an entirely arbitrary date, with no basis in either the O’Keeffe judgment or the Statute of Limitations, and seems designed only to exclude deserving applicants from the scheme.” 

Legal costs

Many applicants had good reasons for not instituting court proceedings, he added.

“It is well documented that the State sought to pursue litigants, including Louise O’Keeffe herself, for enormous legal costs in the aftermath of the Supreme Court decision in O’Keeffe.” 

“This stance by the State had a significant chilling effect on litigation.” 

A further weakness in the revised scheme is the minimal provision made for covering applicants’ legal costs, he said, adding that many will have incurred very substantial legal costs.

"This will significantly reduce the value of the €84,000 award that will be made to them."

He called on Government to remove the condition of litigation against the State prior to July 1, 2021, and to amend the scheme to make provision for all legal costs.