The Government has been accused of refusing to acknowledge the O’Keeffe judgment, by claiming the State does not bear liability for historical child sex abuse in schools.
The Irish Human Rights and Equality Commission (IHREC) and Louise O’Keeffe have both questioned Government guidance which appears to suggest it may not be the responsibility of the State to pay for redress.
Ms O’Keeffe successfully took the State to the European Court of Human Rights (ECHR) in 2014 for failing to protect her from sexual abuse in Dunderrow national school in Cork in the 1970s.
The ECHR found that the State had an obligation to protect her from the abuse she had suffered from her then school principal Leo Hickey. Ms O’Keeffe was awarded redress, and since then has been campaigning for the same redress to be made available to other abuse survivors.
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The Government has agreed to set up a commission of investigation into the handling of sexual abuse in schools, but officials are still considering the issues around the setting up of a redress scheme for survivors of such abuse.
It is understood there are concerns within the Government about the demand for and costs of such a scheme, which would be likely to be the largest in the history of the State.
An interdepartmental report prepared by officials from the departments of the Taoiseach, education, justice, children and public expenditure and reform warned that setting up such a redress scheme was “as complex” as setting up a commission of investigation.
It said that guidance from the Department of Public Expenditure and Reform had warned against “rushed approaches to redress, including the assumption of risk by the State when liability should more appropriately be borne by third parties”.
The report also considered the question of who bears liability for the actions of school employees. “It has been concluded in case law, at Supreme Court level, that the State does not have such liability,” it said.
Liam Herrick, chair of IHREC, said that as recently as January 2024 the State had told the ECHR it was working to meet its legal obligation “to abide by the final judgment of the European Court of Human Rights”.
“The report of the IDG indicates that Government departments adopt a different position in refusing to acknowledge the primacy of the O’Keeffe judgment,” Mr Herrick said.
“So, it must be asked, what is the State really saying to the victims and survivors who have been waiting so many years for the redress they are legally entitled to? Can the Government confirm that it does accept the ruling of the European court which found that the State does bear responsibility for abuse that occurred in schools?”
Ms O’Keeffe told The Irish Times the Government was “basically trying to avoid looking at the ECHR judgment”.
“They are particularly dwelling on the religious organisations as being responsible for paying redress, and seem to be avoiding their own responsibility,” she said.
Prof Conor O’Mahony, director of the child law clinic at UCC, said the claim that the State does not bear liability in such cases was “staggering”.
He said the O’Keeffe judgment applied to “every case of abuse that occurred in any Irish school prior to the adoption of State guidelines on the reporting of abuse in schools in 1992” .
A spokesman for the Department of Education said “domestic courts have ruled that the State is not vicariously liable for the acts of a teacher appointed by the manager of a national school”.
“The 2014 ECHR judgement in O’Keeffe v Ireland indicated that the State bore partial responsibility where a complaint had been made against an alleged abuser and no system was in place to act upon that complaint. Since that ruling, extensive measures have been put in place to improve child protection in schools, including detection and reporting mechanisms as well as vetting and greater overall awareness,” the spokesman said.
