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Opinion: The State's refusal to compensate survivors of abuse violates human rights law

In its efforts to avoid paying compensation to victims, the State has spent €1.5 million on legal fees and re-traumatised some of its most vulnerable citizens, writes Conor O’Mahony.

Dr Conor O’Mahony

IT HAS BEEN established beyond doubt that the Irish State shares a significant part of the responsibility for Ireland’s sorry history of child abuse.

The majority of abuse may have been perpetrated by private individuals; but in various ways, the State created the conditions in which abusers were allowed to operate unchecked for lengthy periods.

However, while the State has accepted its responsibility in some cases, and paid compensation accordingly, it continues to legally obstruct other abuse survivors, causing further injury to them and violating their rights under international human rights law.

20 years ago last month, then Taoiseach Bertie Ahern issued a State apology to victims of child abuse.

Following this, the Commission to Inquire into Child Abuse was established, culminating in the Ryan Report of 2009.

A redress scheme was established to compensate victims of abuse in residential institutions, and the State entered into an indemnity arrangement with the Catholic Church to cover the costs. To date, the bill to the State stands at €1.4 billion.

However, in spite of the State apology and the massive scale of the indemnity and compensation scheme, the State has spent the 20 intervening years seeking to evade responsibility for abuse in non-residential day schools, fighting victims in court and threatening to pursue them for enormous legal costs if they lose.

It does this in spite of the fact that its legal responsibility for this abuse has already been settled.

In 2014, the European Court of Human Rights held in the Louise O’Keeffe case that the State’s failure to implement effective child protection measures in primary schools made it partly responsible for the abuse suffered by her at the hands of her school principal, who had abused more than 20 girls on almost 400 occasions, before moving to another school, where he abused more children. 

Since she suffered abuse in such a defective system and was denied compensation in the national courts, this violated Louise O’Keeffe’s right to freedom from inhuman and degrading treatment, and her right to an effective remedy.

Where a violation is found of the right to an effective remedy, it is an obligation of the State to put in place measures to ensure that similarly situated victims should receive compensation at the national level, without having to take a case to Strasbourg.

As such, the Irish Government proceeded to establish an ‘ex gratia’ scheme to provide out-of-court settlements.

This scheme was deliberately designed from the beginning to give the appearance of compliance with the O’Keeffe judgment while ensuring that compensation would be all but impossible for other abuse survivors to obtain.

In order to qualify for compensation, applicants have to prove that their abuse had occurred in the aftermath of a prior complaint against the abuser which had not been acted upon.

This was a feature of the facts of the O’Keeffe case; but it was not the factor on which the judgment turned, as made clear in several passages of the judgment.

The Irish Human Rights and Equality Commission and the UCC Child Law Clinic have repeatedly highlighted that the judgment turned on a systemic absence of proactive as well as reactive child protection mechanisms, and not on a specific failure to act on the complaint made against the abuser.

From the State’s perspective, the attraction of the prior complaint criterion was that it demanded applicants to do the impossible.

First, a large volume of international evidence shows that the majority of children who are sexually abused do not disclose this fact at the time; those that do make disclosures tend to wait until much later (often until adulthood).

As such, prior complaints are statistically unlikely to have been made in most abuse cases.

Second, even if a complaint was made, applicants are reliant on the evidence of such a complaint being accessible decades after the fact.

But the odds of records being available are not high.

A Department of Education circular directed complaints to school managers – almost invariably parish priests – and religious orders have a vested interest in obscuring the fact that complaints were made and not acted upon, lest they be exposed to legal liability alongside the State.

Even if records exist, the final insurmountable hurdle is the fact that the ex gratia scheme does not provide any mechanism for compelling religious orders to produce the records.

In cases where records have been sought in the course of processing applications for compensation, religious orders have simply refused to release them.

It emerged earlier this year, that every single one of the 45 people whose application to the ex gratia scheme has been considered to date, was refused due to the absence of evidence of a prior complaint.

In establishing and operating a compensation scheme that seems so obviously designed to deny compensation to people entitled to it, the Government is flouting both the judgment of the European Court of Human Rights and the will of the Irish people, as expressed by their elected representatives.

On the latter point, the Dáil voted by a large majority last July to expand the terms of the ex gratia scheme; but as this was a non-binding motion, the Government chose to ignore it.

On the former point, a retired High Court judge is due to report shortly on whether the ex gratia scheme complies with the O’Keeffe judgment, while a fresh application was lodged in the European Court of Human Rights last year by John Allen, an abuse survivor from Cork City.

In May, the Taoiseach and the Minister for Education both stated in the Dáil that a scheme which rejects every single application is clearly not working, and should be reviewed.

However, several weeks later, no further information has been given on what this will mean, and requests for meetings from advocates have thus far led to nothing.

The ex gratia scheme proposes to make payments of €80,000 to successful applicants.

There are 360 known victims, all of whom were abused in an education system that has been found to have been inherently defective from a child protection standpoint.

Compensating all of them would cost €28.8 million – just 2% of the cost of the indemnity given to religious orders for institutional abuse.

In its efforts to avoid paying this money, the State has spent approximately €1.5 million on legal fees and re-traumatised some of its most vulnerable citizens.

It is far past time to stop lining the pockets of lawyers and to do the right thing for the right reasons.

If the Taoiseach and the Minister for Education meant what they said in the Dáil recently, then they should act on those words without further delay.

Dr Conor O’Mahony is a senior lecturer in child law and Director of the Child Law Clinic at University College Cork.

The Clinic provided legal research assistance to Louise O’Keeffe during her case before the European Court of Human Rights and has continuously advocated for compensation for abuse survivors since. 

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Dr Conor O’Mahony

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