State's legal strategy hurts and denies abused children all over again

It is crucial that the Government immediately complies with the rule of law and the judgment of the European Court of Human Rights, and opens a fair and accessible redress scheme that — finally — provides redress to survivors. Picture: iStock

We now know that as evidence of child clerical abuse crimes percolated Irish communities in the 1990s, the Catholic Church began to divide and divest itself of many of its assets. 

We saw fresh evidence of this recently in the RTÉ Investigates documentary: Christian Brothers — The Assets, The Abusers, which was broadcast on Thursday May 1.

Clerical institutions have, rightly, come in for much criticism as they appear to do everything in their power to avoid providing adequate redress to survivors.

However, we must also examine the legal strategies adopted by successive governments towards survivors. 

Decades after the extent of child abuse became widely known, there are still far too many survivors of abuse in Irish schools who have been denied justice for years — survivors the State has been legally responsible for providing redress to since 2014.

In that year, following a case taken by Louise O’Keeffe, the European Court of Human Rights established beyond doubt that the Irish State had — and continues to have — a positive duty to take steps to protect children from abuse and to provide an effective remedy for those who have suffered sexual abuse in Irish schools. 

Whatever the legal responsibility owed by religious orders to individual survivors, the State has a standalone responsibility to every one of them.

Despite expressions of sympathy and contrition by each of the taoisigh that have been in office since 2014, the legal and administrative steps taken by their successive governments have consistently frustrated victims’ rights

The introduction and operation of two discriminatory and fundamentally flawed schemes have excluded most survivors from redress.

To illustrate just how flawed the two ex-gratia schemes were, consider this: Many women who were sexually abused as children by convicted paedophile Leo Hickey in the same school as Louise O’Keeffe are still fighting for redress.

These survivors are known, and have been known, to the State for decades. Many of these women provided statements to An Garda Síochána, leading to the prosecution and conviction of Leo Hickey. 

However, due to the discriminatory and flawed pre-conditions imposed by the ex-gratia schemes, they were not eligible for redress.

Redress

Indeed, as of January 30, 2024, only 158 survivors of sexual abuse in schools across the whole country have received redress. The egregious failure of the State to listen to and vindicate the rights of these victims has been repeatedly raised with Irish governments by the Irish Human Rights and Equality Commission.

The commission wrote to the minister for education last December seeking redress for a number of women abused by Leo Hickey. To date, there has been no response from the Government.

At the same time, the commission has intervened as amicus curiae (friend of the court) in cases where survivors had to litigate in the High Court to force the State to give them the redress to which they are entitled.

This has caused untold emotional and financial stress to these survivors and their families

Yet, eventually all were awarded the amount of €84,000 they were entitled to — and which they should never have been forced to go to court to receive.

While the recent RTÉ documentary laid bare the scandalous legal strategies adopted by religious orders to avoid restitution to victims, the State’s own legal strategy perhaps deserves even more attention.

After all, the Government’s approach to litigation must be in the public interest and should ultimately be accountable to the people.

Instead, questions about access to assets and disputes about the relative responsibility between State, religious, and individual offenders have all served to protect the powerful and to delay — and even deny — justice.

The recent report of the Scoping Inquiry (into historical sexual abuse in schools run by religious orders) is a shocking account of the nature and extent of the depravity visited on children in Irish schools.

A significant new inquiry — in whatever form — must now follow

It is also clear that, as a society, we cannot tolerate any longer the legal chicanery that has dogged previous attempts to reach truth and justice in relation to child abuse.

What can be done?

First, regarding ongoing issues of redress, the State needs to finally meet its obligations under the O’Keeffe judgment.

In 2021, Norma Foley said that “Ireland takes its responsibilities to the European Court of Human Rights very seriously”. We now need to see those words acted on.

It is crucial that the Government immediately complies with the rule of law and the judgment of the European Court of Human Rights, and opens a fair and accessible redress scheme that — finally — provides redress to survivors. 

Such a scheme, in contrast to the two previous schemes, must not include unreasonable or arbitrary conditions to admission

Secondly, the recent RTÉ documentary identified several legislative and regulatory gaps which prevent the State and victims from having a clear view of the assets held by religious orders. 

Rather than relying on good will from these orders, which has never materialised, the State should now assert its authority and address those gaps.

Lastly, any new investigation into child abuse in schools must learn from the achievements and the limitations of previous inquiries and investigations. 

Given all we know about the intention and capacity of religious bodies to frustrate inquiries, an inquiry into abuse in schools — whether it is a tribunal or a commission of investigation — must be granted the powers and must adopt the necessary procedures to effectively vindicate the rights of victims.

• Liam Herrick is the chief commissioner of the Irish Commission for Human Rights.