Every child who experienced sexual abuse in schools should be compensated

The Report of the Scoping Inquiry into Historical Sexual Abuse in Schools Run by Religious Orders is a carefully considered document that makes important recommendations and adds to our understanding of the incidence of allegations of sexual abuse in certain Irish schools over a period of several decades. It makes no findings in respect of the veracity of those allegations, and recommends the establishment of a statutory Commission of Investigation empowered to make findings of fact. It further recommends a redress scheme for survivors of abuse in schools.
While the report sheds new light on the potential scale of the problem, its core implication (namely, that there was a high incidence of sexual abuse in Irish schools during the 1960s and 1970s in particular, about which little was done by anyone – State or Church) is nothing new.
It has already been established as a matter of law that the child protection framework in Irish schools was defective in the period covered by the report. The European Court of Human Rights in Louise O’Keeffe’s case in 2014 ruled that “when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware, given its inherent obligation to protect children in this context, of potential risks to their safety if there was no appropriate framework of protection. This risk should have been addressed through the adoption of commensurate measures and safeguards.”
However, the court expressed its view that the mechanisms pointed to by the government as protecting children in school at the time “did not provide any effective protective connection between the State authorities and primary schoolchildren and/or their parents”.
Thus, the “inherent positive obligation of government in the 1970s to protect children from ill-treatment … was not fulfilled”, as the Irish State “continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors … without putting in place any mechanism of effective State control against the risks of such abuse occurring”. This failure amounted to a violation of article 3 of the European Convention on Human Rights.
The key point to stress is that the court in O’Keeffe’s case found a failure to provide “any” effective child protection mechanism in Irish schools. The finding was not specific to Louise O’Keeffe’s case, or even to her school; it was directed at the entire arrangement whereby control of schools was ceded to non-State actors, without any continuing State efforts aimed at the prevention, detection and reporting of abuse. This finding applies 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.
So, we are not learning for the first time that child protection in Irish schools was defective for much of the 20th century. Nor is it novel to suggest that people who experienced abuse in that system should receive redress.
When the European Court of Human Rights rules against a State party, there is an obligation to take individual measures (to address the specific case before the court) and general measures (to address any similar cases arising). Following the O’Keeffe case, Louise O’Keeffe herself was awarded damages as an individual measure; and the general measure took the form of an ex gratia payment scheme that should have compensated others abused in schools. Unfortunately, this scheme was designed from its inception to make it almost impossible to receive compensation. In its first iteration, a requirement that applicants demonstrate that their abuse followed a prior complaint against their abuser resulted in every single application being rejected.
In 2019 a retired High Court judge ruled that this version of the scheme was incompatible with the O’Keeffe judgment. Then taoiseach Leo Varadkar stated in the Dáil: “The State failed [abuse survivors] at the time and failed them again when it did not own up to its responsibility. We will not fail them a third time.”
But the State did fail the survivors a third time. A revised version of the scheme opened in 2021 has made payments to 128 applicants. However, a further restrictive (and arbitrary) condition that required applicants to have sued the State before July 2021 has resulted in many other applicants being refused (and more still not even applying).
Only one-third of the budget of €31 million allocated to the scheme was paid out. Most of the people abused by the same teacher as Louise O’Keeffe would not have qualified for payments under the scheme – which demonstrates the bizarre logic at work.
It is welcome to hear the Government accept that the hundreds of people who contributed to the scoping inquiry (and others yet to come forward) should receive redress. But many of the same Government figures have for years presided over redress schemes designed to exclude victims (even where the abuser was convicted of the abuse) through the imposition of arbitrary criteria.
Survivors, solicitors, the Irish Human Rights and Equality Commission and the Child Law Clinic in UCC have spent a decade battling the Department of Education seeking the full implementation of the O’Keeffe judgment, but this has yet to happen.
Redress is owed to those people now; it has been owed to them for more than 10 years already. It need not and should not wait until the completion of any Commission of Investigation Report. Very simply, the 2014 O’Keeffe judgment demands that every child who experienced sexual abuse in a defective child protection framework in schools be compensated for that abuse. The Government needs to match words with action for the first time on this matter.
Prof Conor O’Mahony is director of the Child Law Clinic at UCC, and served as Special Rapporteur on Child Protection from 2019-2022