Focus on redress: 'They're waiting for us to die' - Day school pupils still await redress for abuse
Louise O'Keeffe who was the victim of sexual abuse pictured outside Dunderrow National School, Kinsale, Co. Cork. She won a landmark ruling at the European Court of Human Rights to establish the State’s vicarious liability for her personal injuries as a result of the abuse she suffered in her national school. Photo: Dan Linehan
Up to July 2019, a redress scheme for those abused in schools prior to 1992 was closed to applicants because of a ‘prior complaint’ criteria. Since then a Government review of the scheme has been delayed by the Covid-19 pandemic.
Some survivors are concerned that redress for survivors of Mother and Baby Homes will be handled in the same way as redress for school survivors.
“They are trying to sweep us under the carpet, and wait for us to die.”
“What they say to survivors is: ‘Go away child’. It’s how they treated children during a time when children were seen and not heard.”
“Abused as a child, and not heard or listened to as an adult. Ultimately, it all comes down to the pennies to them.”
Christy Rainbow does not mince his words when it comes to talking about the failures of successive governments to respond to the plight of those abused in schools.
He is a former student of Creagh Lane National School in Limerick, where he along with 17 of his classmates were abused by their teacher in 1967, during their first year in school.
Sean Drummond, a former Christian Brother employed by the State, was jailed for two years in 2009, serving all but five months of his sentence.
In 2013, he received a separate suspended sentence for the indecent assault of a 10-year-old pupil at CBS Sexton Street, another school run by the Christian Brothers in Limerick city, in 1968.
Despite securing a conviction against their abuser, former Creagh Lane students could not access redress through the State’s ex gratia scheme, as they could not meet the ‘prior complaint’ criteria.
Their applications were not part of the independent assessors’ review, and they remain locked out of redress like many survivors of abuse in national and day schools.
“We’ve been at this with three different Taoisigh, three different Attorney Generals, four different Ministers for Education, an investigation by an independent assessor appointed by the Government,” Christy said.
“It is appalling. It is all just words to them, and no action. They’ve had seven years to examine this but now it’s a ‘complex issue’. We’re supposed to be dealing with supposedly professional people here.”
The State was aware of its role and responsibilities in regards to abuse in many different institutions, Christy said.
"They knew and did nothing."
In 2017, men from Creagh Lane along with other survivors in Victims of Abuse in Day Schools (VOCADS) traveled to Brussels to highlight the lack of action on progressing their redress.
The Creagh Lane Action Group has traveled to Dublin five times over the last five years to protest outside both the Dáíl and the Department of Education.
Their cases have been raised in the Dáil by local TDs Willie O’Dea, Fianna Fáil, and Maurice Quinlivan, Sinn Féin.
Last September, Norma Foley, the Minister for Education, met them outside the gates as they protested at the Department of Education.
“It’s not right that we have to fight like this when they have been proven to be wrong so many times. It is nonsense,” Christy said.
“We just want them to honour their commitments.” Christy worries that redress for survivors of Mother and Baby Homes will be handled in the same way as redress for school survivors.
“Someone faceless making the decisions, dragging people through the courts, telling people the issues are ‘complex’ all to keep people in the dark.”
"It wasn’t society who funded the Mother and Baby Homes, who supported them. It was the State."
Despite apologies from two Taoisigh, and the support of the country’s current leader while in opposition, the State has yet to meet its obligations to survivors of abuse in schools.
Since July 2019, a redress scheme for those abused in schools prior to 1992 remains closed to applicants, pending a review.
Many promises have been made when it comes to action; In March 2017, Micheál Martin described the State’s approach as “cynical beyond belief. Many of the victims are in a very poor financial state and some have suicidal ideation because of the trauma that has been visited on them,” he told the Dáil during Leaders Questions.
“They have been to the Supreme Court and back and to the High Court and back. They can no longer get redress in our courts notwithstanding the European Court of Human Rights.” Political statements aside, the administration and the decision-making around the redress scheme have happened largely away from the eyes of the public.
The Commission to Inquire into Child Abuse (CICA) was a landmark inquiry for Ireland, its final publication making global headlines in 2009.
The Ryan Report, as it is now known, chronicled decades of systemic abuse inflicted on the most vulnerable members of Irish society.
The Commission spent the best part of 10 years scrutinising the pasts of industrial and reformatory schools, children’s homes, hospitals, national and secondary schools, day and residential special needs schools, and foster care.
It also looked at abuse in Magdalene laundries and hostels. It also established the Department of Education’s role and responsibilities in the running and overseeing of these institutions.
In terms of redress for victims, the Residential Institutions Redress Board (RIRB) was set up in 2002. Under the legislation, those who suffered abuse as children while they were a resident at 139 listed institutions could apply for compensation.
This list included industrial schools, reformatories, and other institutions, such as hospitals or orphanages. It wasn’t necessary for a person to have been prosecuted or convicted of any criminal offense in connection with the abuse reported to the RIRB.
Each award was made based on the evidence provided, which included evidence of having been a resident, and evidence of any injuries arising out of the abuse suffered. Crucially, those who suffered abuse in national or day schools were excluded from the scheme.
The State consistently argued that while it was acting in ‘loco-parentis’ for children placed in industrial schools, it wasn’t responsible for what happened in national or day schools.
It argued that even though teachers were on its payroll, responsibility for the day-to-day operations lay instead with each school’s board of management, and not with the Department of Education.
Victims were free to pursue civil cases in the courts, the State always maintained.
However, an investigation by the Irish Examiner found that a settlement was reached in less than 4% of 408 legal actions of historical child abuse outside of residential institutions taken against the Minister of Education between 2006 and 2019.
Almost 85% of these cases were discontinued, withdrawn, or prevented from proceeding due to the statute of limitations. Indemnity was received in eight of these 408 cases, and a further 40 were dismissed.
In 2014, Cork woman Louise O’Keeffe won a landmark ruling at the European Court of Human Rights (ECHR) following a 15-year legal battle through the Irish courts.
She had 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.
During her litigation, the State repeatedly sought to pursue Louise O’Keeffe for costs, and at one point, she stood to lose her family home.
When she lost in the Supreme Court, the State wrote to people pursuing similar cases in the courts, threatening to pursue them for costs unless they dropped their cases. Many of them proceeded to.
In 2014, the ECHR ruled the State was aware of a significant rate of sexual crimes against children.
Yet, it still tasked the management of schools locally, and failed to put an effective complaint mechanism in place for children.
This meant it failed in its obligations under the European Convention on Human Rights.
Apologising in the Dáil following the judgment, then-Taoiseach Enda Kenny described Louise as “a woman of extraordinary commitment”.
"Sadly, [her case is] one that's indicative of a long litany of cases in Ireland," Mr. Kenny said. "That's why in the past we've had to deal with an exceptional number of cases that scar our memory.” The State established an ex gratia [without obligation] scheme to provide redress to other survivors, the design of which was not subjected to in-put from survivors or opened up to public consultation.
One criteria survivors were asked to demonstrate was 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.
This was an impossible criteria to meet. In early 2019, it emerged that not one applicant to the scheme had been paid out.
According to Dr Conor O’Mahony of the Child and Family Law Clinic at UCC, this prior complaint criteria had no basis in the 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.” Retired High Court Judge Justice Iarfhlaith O’Neill was appointed in 2017 by the government as an independent assessor to examine applications to the ex gratia scheme, declined by the State Claims Agency.
He examined 19 such applications. In July 2019, he concluded that the State had misinterpreted the ECHR ruling.
Justice O’Neill described the scheme as presenting "a fundamental unfairness to applicants" and involving "an inherent inversion of logic", because of the prior complaint criteria.
A State apology was issued the next day in the Dáil to all survivors by then-Taoiseach Leo Varadkar.
“Successive governments, including this one, have not put right this historic wrong, and so have perpetuated it and we will seek to right that wrong now."
The ex gratia scheme was frozen, pending a review. In the almost two years since that statement was made, the scheme remains closed to survivors.
The State is expected to file regular updates to the Council of Europe. In its latest update, it said its review was delayed for a time due to the Covid-19 pandemic.
However, the Department of Education and the Office of the Attorney General are now devoting “significant resources” to the matter.
“The issues involved are highly sensitive and complex and therefore require careful deliberation before proposals can be finalised and brought to Government.” This includes “the number of people who could potentially be involved, the legal implications of any course of action, and an accurate estimate of likely costs”.
The State expects to be in a position to commence a new or modified redress scheme for victims of sexual abuse in schools by the end of September, officials told Europe in June.
To date, 16 offers of payment have been made and accepted through the scheme.
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