ECtHR judgement finds Irish State liable for sexual abuse in Catholic Schools

Structure of primary education in Ireland in the 1970s failed to
protect a schoolgirl from sexual abuse by her teacher In today’s Grand Chamber judgment in the case of O’Keeffe v. Ireland (application no. 35810/09),
which is final1, the European Court of Human Rights held:
by 11 votes to 6, that there had been a violation of Article 3 (prohibition of inhuman and degrading
treatment) and of Article 13 (right to an effective remedy) of the European Convention on Human
Rights concerning the Irish State’s failure to protect Ms O’Keeffe from sexual abuse and her inability
to obtain recognition at national level of that failure; and
unanimously, that there had been no violation of Article 3 of the European Convention as regards
the investigation into the complaints of sexual abuse at Ms O’Keeffe’s school.
The case concerned the question of the responsibility of the State for the sexual abuse of a
schoolgirl, aged nine, by a lay teacher in an Irish National School in 1973.
The Court found that it was an inherent obligation of a Government to protect children from
ill-treatment, especially in a primary education context. That obligation had not been met when the
Irish State, which had to have been aware of the sexual abuse of children by adults prior to the
1970s through, among other things, its prosecution of such crimes at a significant rate, nevertheless
continued to entrust the management of the primary education of the vast majority of young Irish
children to National Schools, without putting in place any mechanism of effective State control
against the risks of such abuse occurring. On the contrary, potential complainants had been directed
away from the State authorities and towards the managers (generally the local priest) of the
National Schools. Indeed, any system of detection and reporting of abuse which allowed over 400
incidents of abuse to occur in Ms O’Keeffe’s school for such a long time had to be considered
ineffective.

Article 3 (ill-treatment)
The Court acknowledged that, when examining this case, it had to assess any State responsibility
from the point of view of facts and standards of 1973 and, notably, disregarding the awareness in
society today of the risk of sexual abuse of minors in an educational context. That awareness is the
result of recent public controversies on the subject, including in Ireland. The Court also
acknowledged that the model of primary education in Ireland, a product of its historical experience,
was unique in Europe with the State providing for education (setting the curriculum, licencing
teachers and funding schools) and the day-to-day management of primary education being provided
by National Schools.
The Court went on to recall that young children are vulnerable, and it was an inherent obligation of a
Government to protect them from ill-treatment, especially in primary education when they are
under the exclusive control of school authorities, by adopting special measures and safeguards. A
State could not absolve itself from that obligation by delegating to private bodies or individuals. Nor
could it be freed from that obligation since, as suggested by the Government, Ms O’Keeffe could
have chosen alternative schooling options such as home schooling or fee-paying schools. Primary
education was obligatory under national law and Ms O’Keeffe had no realistic and acceptable
alternative at the time other than to attend her local National School, along with the vast majority of
children of her age.
The crucial question in this case was not the responsibility of LH, of a clerical Manager or Patron, of a
parent or of any other individual for the sexual abuse to which Ms O’Keeffe was subjected in 1973.
Rather the case concerned the State’s responsibility and whether it should have been aware of a risk
of sexual abuse of minors such as the applicant in National Schools at the relevant time and whether
it had adequately protected children, through its legal system, from such ill-treatment.
On the first point, the Court found that the State had to have been aware of the level of sexual crime
against minors through its prosecution of such crimes at a significant rate prior to the 1970s. A
number of reports from the 1930s to the 1970s gave detailed statistical evidence on the prosecution
rates in Ireland for sexual offences against children. The Ryan Report of May 2009 also evidenced
complaints made to the authorities prior to and during the 1970s about the sexual abuse of children
by adults. Although that report focused on reformatory and industrial schools, complaints about
abuse in National Schools were recorded.
Despite this awareness, the Irish State continued to entrust the management of the primary
education of the vast majority of young Irish children to privately managed National Schools,
without putting in place any mechanism of effective State control.
The Government maintained that certain mechanisms of detection and reporting had been in place.
However, the Court did not consider these to be effective.
In the first place, the Government pointed to the 1965 Rules for National Schools and the 1970
Guidance Note outlining the practice to be followed for complaints against teachers. However,
neither referred to any obligation of the authorities to monitor a teacher’s treatment of children nor
provided a procedure for prompting a child or parent to complain about ill-treatment directly to a
State authority. Indeed, the Guidance Note specifically channelled complaints directly to non-State
Managers, generally the local priest as in Ms O’Keeffe’s case. Complaints had in effect been made in
1971 and 1973 about LH to the Manager of Ms O’Keeffe’s school but the Manager had not brought
those complaints to the notice of any State authority.
Secondly, the system of School Inspectors, also relied upon by the Government, did not refer to any
obligation on Inspectors to inquire into or monitor a teacher’s treatment of children, their task
principally being to supervise and report on the quality of teaching and academic performance.
While the Inspector assigned to Ms O’Keeffe’s school in Dunderrow had made six visits from 1969 to
1973, no complaint had ever been made to him about LH.
Indeed, no complaint about LH’s activities had been made to a State authority until 1995, after LH
had retired. The Court considered that any system of detection and reporting which allowed over
400 incidents of abuse by LH to occur over such a long period had to be considered to be ineffective.
Adequate action taken on the 1971 complaint could reasonably have been expected to avoid Ms
O’Keeffe being abused two years later by the same teacher in the same school.

In sum, in Ms O’Keeffe’s case, the consequences of a lack of protection from abuse had been the
failure by the non-State Manager to act on prior complaints of sexual abuse by LH, Ms O’Keeffe’s
later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against
numerous other students in that same National School.
Therefore, the Irish State had failed to meet its obligation to protect Ms O’Keeffe from the sexual
abuse to which she had been subjected in 1973 whilst a pupil in Dunderrow National School, in
violation of Article 3.
Article 3 (investigation)
As soon as a complaint about sexual abuse by LH of a child from Dunderrow National School was
made to the police in 1995, an investigation was opened during which Ms O’Keeffe had been given
the opportunity to make a statement. The investigation resulted in LH being charged on numerous
counts concerning sexual abuse, convicted and imprisoned. Ms O’Keeffe had not taken issue with
the fact that LH was allowed to plead guilty to representative charges or with his sentence.
Therefore, the Court found that there had been no violation of Article 3 as regards the investigation
into complaints of sexual abuse at Ms O’Keeffe’s school.
Article 13 (recognition at national level of the failure to protect Ms O’Keeffe from abuse) in
conjunction with Article 3
The Court considered that it had not been shown that any of the national remedies on which the
Government had relied (the State’s vicarious liability, a claim against the State in direct negligence or
a constitutional tort claim) had been effective as regards Ms O’Keeffe’s complaint about the failure
to protect her from abuse. There had therefore been a violation of Article 13.
Other articles
The Court held that the complaints under Article 8, Article 2 of Protocol No. 1 and Article 14 did not
give rise to any issues separate to those already examined.
Article 41 (just satisfaction)
The Court held, by eleven votes to six, that Ireland was to pay Ms O’Keeffe 30,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage and EUR 85,000 for costs and expenses.
Separate opinions
Judge Ziemele expressed a concurring opinion; Judges Zupančič, Gyulumyan, Kalaydjieva, de
Gaetano and Wojtyczek expressed a joint partly dissenting opinion; and, Judge Charleton expressed
a dissenting opinion. These opinions are annexed to the judgment.
The judgment is available in English and French.

28 January, 2014 - Press Statement from Dept of Education & Skills on ECHR Judgment in Louise O’Keeffe v. Ireland

The abuse to which Louise O’Keeffe and many others were subjected to in our recent past is a source of national shame and it has taught us lessons that we as a country must never forget.

The European Court of Human Rights delivered a Grand Chamber judgment in the case of O’Keeffe v. Ireland this morning. In its judgment the ECHR found, by a 11:6 majority decision, that there was a violation of the substantive aspect of Article 3 of the Convention as regards the State's failure to fulfil its obligation to protect the applicant and that there has been a violation of Article 13, taken together with the substantive aspect of Article 3 of the Convention, on account of the lack of an effective remedy as regards the State's failure to fulfil its obligation to protect the applicant.

The ECHR held that Ms O’Keeffe should be paid €30,000 damages and €85,000 in respect of the costs and expenses of the domestic and Convention proceedings. The ECHR held unanimously that there has been no violation of the procedural aspect of Article 3 of the Convention and that it is not necessary to examine separately the complaints under Article 8 or under Article 2 of Protocol No. 1, whether alone or in conjunction with Article 14 of the Convention.

The detailed judgment of the ECHR, which is binding on the State will now be assessed for its implications and the necessary steps to implement the decision of the ECHR will be pursued.

This case arose out of the sexual abuse of Ms O’Keeffe while attending primary school in the early 1970s. Since that time, Irish society has faced the scourge of child sexual abuse in a wide range of settings from within family homes, to residential settings and in the wider community settings, such as schools and sports clubs, as well as in specific Catholic Church contexts. This is a deeply shameful part of our recent history.

The State has put in place robust child protection measures with a central role for the recently established Child and Family Agency. Within the education sector, all schools are required to adhere to Child Protection Procedures which give direction and guidance to school authorities and school personnel in the implementation of Children First when dealing with allegations/suspicions of child abuse. All primary schools fully implement the Stay Safe programme which plays a valuable role in helping children develop the skills necessary to enable them to recognise and resist abuse and potentially abusive situations.

Note for Editors

This case arose out of the sexual abuse of Ms O’Keeffe by her school principal, Mr Leo Hickey, when attending primary school in the early 1970s. Mr Hickey was charged with 386 criminal offences of sexual abuse involving 21 former pupils. In 1998 he pleaded guilty to 21 sample charges and was sentenced to imprisonment. Ms O’Keeffe was compensated through the Criminal Injuries Compensation Tribunal and brought a civil action against the perpetrator, Mr Hickey, and the Minister for Education and Skills, Ireland and the Attorney General. Mr Hickey did not defend the action and in 2006 the High Court ordered him to pay Ms O’Keeffe €305,104 in damages, of which some €30,000 has been received at a rate of €400 per month. The High Court dismissed the claim of direct negligence against the State and held that the State was not vicariously liable for the sexual assaults by Mr Hickey. The Supreme Court dismissed Ms O’Keeffe’s appeal on the vicarious liability point.

Ms O’Keeffe complained to the ECHR that the IrishState failed both to structure the primary education system so as to protect her from abuse as well as to investigate or provide an appropriate judicial response to her ill-treatment. She also claimed that she has not been able to obtain recognition of, and compensation for, the State’s failure to protect her. She relied on Article 3 (prohibition of in human and degrading treatment) and Article 13 (right to an effective remedy). She further complained of violations of Article 8 (right to respect for private life) and Article 2 of Protocol No. 1 (right to education), alone and in conjunction with Article 14 (prohibition of discrimination).

from ruling wrote:

...nevertheless
continued to entrust the management of the primary education of the vast majority of young Irish
children to [CATHOLIC] National Schools, without putting in place any mechanism of effective State control
against the risks of such abuse occurring.