Belfast Telegraph

Government misrepresented ECHR ruling on abuse victim, judge finds

Judge Iarfhlaith O’Neill carried out an independent assessment of a redress scheme.

Joe McHugh said he hoped that the decision of the independent assessor may help to ‘bring a measure of closure to some of the survivors’ (Brian Lawless/PA)
Joe McHugh said he hoped that the decision of the independent assessor may help to ‘bring a measure of closure to some of the survivors’ (Brian Lawless/PA)

The Government misrepresented a ruling by the European Court of Human Rights (ECHR) by excluding children abused in Irish schools from a redress scheme, a judge has found.

Judge Iarfhlaith O’Neill, who carried out an independent assessment of the scheme, found that one of the state’s conditions was “not compatible” with the judgment in the Louise O’Keeffe case in 2014.

One of the terms said that abuse victims are only eligible for redress if there had been a prior complaint made against their abusers.

Victims of sex abuse in primary schools had to prove there was a complaint made about the abuser before their abuse took place.

For the state to insist on such a pre-condition to eligibility involved an inherent inversion of logic Judge Iarfhlaith O'Neill

In his report, Judge O’Neill said that 13 applicants who were initially refused were entitled to a payment from the State Claims Agency (SCA).

The ex-gratia scheme was established in July 2015 following the judgment by the ECHR, which found that the state had a vicarious liability for the abuse Ms O’Keeffe suffered by her primary school principal.

The state argued that central to the judgment was the fact that there had been a prior complaint of sexual abuse against the school principal.

Judge O’Neill said: “For the state to insist on such a pre-condition to eligibility involved an inherent inversion of logic and a fundamental unfairness to applicants.

“The failure which constituted the breach of Article 3, was not having a state-controlled mechanism for detecting and reporting incidents of sexual abuse in national schools.

“An unavoidable consequence of that failure is that no records now exist or are available, of complaints which may have been made, and many complaints in all probability were not made because there was no state-controlled complaints procedure in place.

“Thus it is inherently illogical for the state to demand the very evidence, which is not there, or cannot be recovered, because of the very failure of the state which constitutes the actual breach of Article Three of the Convention as so found by the ECHR.”

Nineteen applications were assessed by Judge O’Neill.

He has written to all 19 applicants and their legal representatives to inform them of his decisions in respect of the assessment of their applications.

Judge O’Neill ruled that six applicants whose applications were refused on the latter ground, but also on the additional ground that they do not fulfil the eligibility terms in the ex-gratia scheme, are not entitled to a payment from the scheme.

Education Minister Joe McHugh said he wanted to express his “abhorrence” of sexual abuse and sympathy for those who have suffered.

He said he also acknowledged the trauma that is faced by survivors of child sexual abuse.

The minister said he hoped that the decision of the independent assessor may help to “bring a measure of closure to some of the survivors”.

Following Judge O’Neill’s decision, payments will be made by the SCA to the 13 applicants.

The SCA has been asked to make this an immediate priority.

The Irish Human Rights and Equality Commission called for the Government to “quickly overhaul” its scheme to ensure “effective remedy to those who are being denied justice by state inaction”.

Emily Logan, chief commissioner, said: “Louise O’Keeffe’s long fight for justice should have finally paved the way to an effective remedy for survivors of child abuse in Irish schools, but instead the state’s narrow interpretation of that ruling has served only to block, deny and frustrate victims.

“The Commission welcomed the opportunity to make submissions to the independent assessor on this important human rights issue and the Commission hopes that his decision will now lead the Government to immediately put in place a remedy that complies with the O’Keeffe judgment and ensures an effective remedy to survivors of child abuse in Irish schools.”

Mr McHugh added: “First and foremost my thoughts are with those who were sexually abused in schools.

“It is a heinous act which left some people feeling robbed of their youth, and others their lives, while other survivors railed against the trauma and overcame it.

“I hope that the work of Judge O’Neill will bring some measure of closure to some people who were affected by abuse in school and went on to challenge the State.

“The ruling by Judge O’Neill is a complex one which will require in-depth analysis before decisions are taken on how to respond to the issues raised.”

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