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Column If the State had done the right thing, Louise O'Keeffe would never have been abused

In a landmark ruling today, the European Court of Human Rights said the Irish State is liable for the sexual abuse of children in schools where it had failed to put effective child protection measures in place.

TODAY’S RULING BY the European Court of Human Rights that the Irish State is liable for its failure to take steps to prevent sexual abuse of children in primary schools represents long-overdue vindication for Louise O’Keeffe.

For 20 years, she has sought to establish that the blame for her ordeal did not lie exclusively at the hands of her abuser. Had the State done what it ought to have done, and put in place effective child protection measures, she would never have been abused in the first place. The decision is a tribute to her courage and tenacity, and a damning indictment of the State’s abdication of responsibility towards children over many decades.

Louise O’Keeffe was the victim of a series of sexual assaults in 1973 by the school principal at Dunderrow National School, Leo Hickey. Complaints had been made against Hickey but, in line with Department of Education policy, they were directed to the local priest. The Department never became aware of them, and Hickey continued to teach at the school, committing over 400 counts of abuse on over 20 victims. After further allegations, he resigned his post and moved to another school, where he taught for another 22 years until retiring in 1995.

In 1996, complaints were made to the Gardaí regarding abuse at Dunderrow. Hickey pleaded guilty in 1998 to 21 sample charges relating to sexual abuse of girls under his care at Dunderrow, and was sentenced to three years in prison. Louise O’Keeffe was awarded IR£53,000 by the Criminal Injuries Compensation Tribunal. She later instituted civil assault proceedings against Leo Hickey in 1998, and was awarded in excess of €305,000 in compensation.

Highlighting the State’s role in allowing this abuse to continue

However, determined to highlight the State’s role in allowing this abuse to continue for so long, Louise O’Keeffe sued the State for vicarious liability for Hickey’s actions. In 2009, the Irish Supreme Court ruled against her on the basis that Hickey, although paid by the State, was employed by the school board of management. Therefore, the State bore no responsibility for the abuse.

In her application to the European Court of Human Rights, she argued that rather than being vicariously liable for Hickey’s actions, the State was directly liable for its own inaction. No measures were in place that would effectively detect and prevent child abuse in primary schools. Had such measures been in place, Hickey would have been removed from his position far earlier and his litany of abuse would never have been allowed to go as far as it did.

The Court’s judgment today accepted this argument. It found that under Article 3 of the ECHR (freedom from inhuman and degrading treatment), it was an “inherent…obligation of government in the 1970s to protect children from ill-treatment”, and that this obligation was “of acute importance in a primary education context”. It rejected the State’s argument that it was not aware of the risk of abuse in Irish primary schools, since such crimes were being prosecuted “at a significant rate” at the time.

The State failed to fulfil its obligation when it entrusted the management of the primary education of the vast majority of young Irish children to denominational schools, without putting in place any mechanism of effective State control against the risks of abuse occurring. Complaints were directed away from State authorities towards the school managers (usually parish priests), and school inspectors had no obligation to inquire into or monitor teachers’ treatment of children.

Ultimately, the case came down to a statement of the obvious by the Court: in a case where a single teacher committed over 400 counts of sexual abuse on over 20 victims without being detected by the State, the child protection system simply had to be considered ineffective.

Irish law did not offer her an avenue

In addition to the violation of the right to freedom from inhuman and degrading treatment under Article 3, the Court also found that there was a violation of the right to an effective remedy under Article 13. Louise O’Keeffe had been able to establish Leo Hickey’s culpability for her abuse before the courts, but the State was also culpable, and Irish law did not offer her an avenue to establish this culpability and to access an effective remedy for it.

After over 15 years of legal battles, Louise O’Keeffe has finally had her personal position vindicated, but significance of the case goes further than this. It clearly establishes that the State cannot wash its hands of responsibility for what happens in denominational schools. It is not enough to write a cheque and then turn your back: a proactive role must be taken to ensure that the rights of children are vindicated in the school system, regardless of who owns or manages the school.

In the context of historical abuse cases, there is now an onus on the State to accept responsibility for its failure to implement effective measures to prevent and detect such abuse, and to provide survivors with a remedy for this failure. Whether this takes the form of a new cause of action before the courts or a redress scheme remains to be seen.

For the future, the case will add further impetus to the development of a more robust child protection framework in Irish schools. While Louise O’Keeffe won due to the absence of almost any child protection measures in 1974, a core message of the judgment is that even more is expected of the State in this respect today. The Ministers for Education and Children should outline clearly how they plan to respond to the judgment at an early opportunity.

Finally, as a judgment of the European Court of Human Rights, the decision has the same implications in 47 countries across Europe. Thus, after decades of being ignored by the State, Louise O’Keeffe has made a key contribution on the international stage in bringing about State action to prevent child abuse.

Dr Conor O’Mahony (@ConorUCCLaw) lectures in Constitutional Law and Child Law at University College Cork. He was one of the UCC Child Law Clinic (@ChildLawUCC) members who worked with Louise O’Keeffe’s legal team, Ernest Cantillon & Co, on the application to the European Court of Human Rights.

Read: Landmark European judgement finds Irish State liable for sexual abuse

Dr Conor O'Mahony
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