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Here's the story of how the State has spent €1.5 million on legal fees trying to avoid paying €28m in compensation to victims of child sexual abuse in schools, even though (a) it is required by human rights law to pay; and (b) it gave religious orders a €1.4 billion indemnity.
In 2014, the European Court of Human Rights ruled that the Irish State failed to protect Louise O'Keeffe from abuse by her school principal. The basis of the judgment is what is really important here:
1. The State was obliged to protect children against abuse.
2. The State knew that children in schools were at risk of abuse.
3. The State handed over control of schools to churches without putting in place any controls against the risk of abuse.
2. The State knew that children in schools were at risk of abuse.
3. The State handed over control of schools to churches without putting in place any controls against the risk of abuse.
These failings were not unique to Louise O'Keeffe's case or school. The child protection framework (such as it was) was the same in all primary schools at the time. The failing was systemic. As such, all abuse victims were equally failed by the State.
A basic principle under the ECHR when a judgment finds against a State - particularly on Art 13 (right to an effective remedy) - is that all similarly situated victims should receive compensation at national level without having to take a case to Strasbourg.
So the Govt set up a scheme to provide compensation. But it didn't want to actually pay any compensation ... so it came up with a way to give the appearance of compliance while actually flouting the O'Keeffe judgment.
It announced that victims would only receive compensation if they could prove that their abuse occurred following a "prior complaint" against their abuser which was not acted upon.
A prior complaint had been made in the O'Keeffe case - but as shown above, this was not the basis in which the ECtHR ruled against Ireland. This point has been made at length by @childlawucc, @_IHREC, @OCO_ireland and others.
From the Govt's perspective, the "prior complaint" criterion promised not just to limit liability, but to eliminate it. Why? Because it is impossible to prove.
First, international peer-reviewed research showd that the majority of children abused in childhood do not disclose this fact until adulthood. So statistically, prior complaints are unlikely to have been made in most cases.
Even if complaints were made, how likely is it that records still exist decades later? And in this highly unlikely event, how can victims access those records when the redress scheme does not have any mechanism to compel their production?
Bear in mind that schools were run by religious orders who have a vested interest in concealing any records of prior complaint, lest they also be exposed to legal liability.
The fact that prior complaint is impossible to prove is neatly illustrated by the fact that every single application to the scheme to date has been rejected for absence of prior complaint. rte.ie/news/ireland/2…
Just to be sure, the Govt added a second criterion: that the applicant had commenced and then discontinued legal proceedings against the State. So victims who never litigated (due to cost/emotional trauma etc) cannot receive compensation even if they *can* prove prior complaint.
What is the aim of all of this? There are 360 known victims. The scheme proposed to make payments of €80,000. That's a total of €28.8 million - just 2% of the €1.4 billion cost of the indemnity given to religious orders for institutional abuse.
Rather than compensating victims for the State's failures as identified in the O'Keeffe case, the Govt prefers to line the pockets of lawyers - spending approx €1.5 million fighting school abuse cases up to 2019
On Tuesday in the Dáil, the Taoiseach and the Minister for Education finally conceded that the scheme is not working. But words are cheap, and survivors have been let down many times. Will @LeoVaradkar back them up with action? rte.ie/news/politics/…
I omitted to mention that the Dáil voted by a large majority in July 2018 to remove the prior complaint criterion, but the Govt is ignoring this motion. Credit where it's due to @MichealMartinTD for raising this issue repeatedly. irishtimes.com/news/politics/…
