Seven years on, apology to children abused in schools is meaningless

The State is no closer to meeting its obligations under human rights law to sexual abuse survivors

Louise O'Keeffe, who was the victim of sexual abuse at Dunderrow National School, Kinsale, Co Cork. Yesterday marked the seventh anniversary of the judgment of the Grand Chamber of the European Court of Human Rights in her case but seven years later it appears the State is no closer to meeting its obligations under human rights law to survivors. Picture: Dan Linehan

When Micheál Martin recently issued a State apology for the treatment of women and children in Mother and Baby Homes, the reaction of survivors was noticeably lukewarm and sceptical. They called for action, not words. This reaction was partly driven by an awareness of the State’s lamentable record in responding to other historical rights violations.

A case in point is the issue of sexual abuse in national schools. Yesterday marked the seventh anniversary of the judgment of the Grand Chamber of the European Court of Human Rights in the Louise O’Keeffe case. But seven years (and two State apologies) later, it appears the State is no closer to meeting its obligations under human rights law to survivors.

Along with over 20 other children in her school, Louise O’Keeffe was repeatedly sexually abused by the school principal Leo Hickey. Hickey committed over 400 acts of abuse at Dunderrow National School, before moving to another school, where he abused again.

The Department of Education never became aware of any of this. It directed schools to refer complaints to the school manager (usually the local priest), and took no other steps to protect children from the risk of sexual abuse in school.

The European Court of Human Rights ruled that the Irish State was aware (through documents such as the 1931 Carrigan Report) of a significant incidence of sexual crime against children – and yet it entrusted the management of schools to the churches without putting in place any controls against the risk of sexual abuse. As such, the State had failed to discharge its obligations under the European Convention on Human Rights. The Taoiseach at the time, Enda Kenny, issued an apology in the Dáil.

It should be clear that the failures in question were not limited to Louise O’Keeffe’s case, or to Dunderrow National School. The see no evil, hear no evil approach to sexual abuse in schools was system wide. As a result, other children were similarly failed by the State and experienced preventable abuse.

The judgment obliged the State to offer redress to people who were similarly situated to Louise O’Keeffe. The State responded by establishing an ex gratia scheme and inviting applications. However, the scheme required applicants to demonstrate that their abuse occurred in the aftermath of a prior complaint that was not responded to.

For various reasons, this condition was impossible to satisfy. Every single application was rejected. More importantly, “prior complaint” 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.

Leo Hickey, former teacher and principal of Dunderrow National School in Kinsale, Co Cork who was jailed in 2017 for sexually abusing a nine-year-old school boy eight times in the early 1990s. There was a previous investigation where he was charged with 387 counts of indecent assault. On June 25, 1998 he pleaded guilty to 21 sample charges and was sentenced to one year on each, the first three to run consecutively, and the remainder concurrently.

A retired High Court judge was appointed by the Government to review the rejected applications. In July 2019, he issued a decision in which he stated that the conditions imposed in the scheme were “an inherent inversion of logic and a fundamental unfairness to applicants”, and “inconsistent with the core reasoning of the judgment of the ECtHR in the Louise O’Keeffe case”.

The then Taoiseach, Leo Varadkar, stated in the Dáil: “The State failed them at the time and failed them again when it did not own up to its responsibility. We will not fail them a third time.” Nineteen months have passed since that statement, and it is quite clear that notwithstanding Mr Varadkar’s words, the State has in fact failed survivors a third time. The ex gratia scheme, which was closed and placed under review, remains closed. Repeated commitments to complete the review within a few weeks have given way to vague holding statements with no timeline.

It is important to state that the review of the scheme is not a complex legal exercise. It could and should have been completed in a matter of weeks after the decision in 2019, long before Covid-19 was ever heard of. The offending condition of prior complaint simply needs to be removed, and the scheme re-opened.

The failure to do so leaves survivors – who the State fought tooth and nail in the courts, and threatened to pursue for enormous legal costs – feeling worse than abandoned. Many of them say that their treatment by the State has not only compounded their original abuse, but surpassed it.

The most recent (and very limited) information provided by the Department of Education stated that the review of the scheme must “[e]nsure that any action does not open the State to an interpretation of strict liability for day school sexual abuse”. But, as any first year law student could identify, there can be no question of this.

Strict liability is defined as liability without a finding of fault. When it comes to historical sexual abuse in national schools, the State has already been found at fault in the Louise O’Keeffe case. It appears that the Department of Education still refuses to accept this finding. Its entire focus has always been to shut down as many claims as possible, and this remains the case no matter how many judges find against it or how many times a Taoiseach apologises in the Dáil.

Survivors of historical sexual abuse in national schools are entitled under human rights law to be compensated for the State’s failure to protect them. Many of them are getting older or are in ill-health. They have already waited far too long for their human rights to be vindicated. The Government has vowed to match its apology to survivors of mother and baby homes with real action. Will it finally provide the action demanded by the two apologies it has issued to survivors of sexual abuse?

Professor Conor O’Mahony is the Director of the Child Law Clinic in UCC, which supported Louise O’Keeffe’s legal action in the European Court of Human Rights and has advocated for implementation of the judgment for the past seven years.