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The Irish Human Rights and Equality Commission (the ‘Commission’) welcomes the decision of Mr Justice Iarfhlaith O’Neill, that survivors of child sexual abuse in National Schools cannot be excluded from the State’s ex gratia (out of court) payment scheme because they have not established a ‘prior complaint’ against their abuser. In November 2017, Mr Justice O’Neill was appointed by the Government as an Independent Assessor to review cases where applicants to the State’s ex-gratia scheme, established in the wake of the European Court of Human Rights (‘ECtHR’) judgment in the O’Keeffe v. Ireland decision, had their applications declined by the State Claims Agency. Since last year the Commission has engaged with Mr Justice O’Neill and communicated its long-established position that the State’s unduly narrow interpretation of the meaning of the Strasbourg Court’s judgment in O’Keeffe is not constructed on a firm legal basis. Mr Justice O’Neill has today found the State’s requirement of a ‘prior complaint’ for an applicant to the ex gratia scheme to be eligible for a payment is incompatible with the ECtHR judgment in O’Keeffe v Ireland.  He went further to hold that the “prior complaint” condition risks a “continuing breach of the rights under Article 13 of the ECHR” (the right to an effective remedy) of those survivors of child sexual abuse in National Schools. Mr Justice O’Neill has found that the 13 cases submitted to him for review, where the applicants were refused on the sole ground that they failed to furnish evidence of a “prior complaint” are entitled to a payment under the ex gratia scheme. In relation to the 6 remaining cases before him (where the State Claims Agency had refused payments for two reasons – namely that the applicants had failed to furnish evidence of “prior complaint” and because they did not have litigation against the State which they had discontinued), Mr Justice O’Neill found that while the applicants are not entitled to payment under the ex gratia scheme, he considered that there may still be a more appropriate avenue of redress outside the terms of that scheme. The Commission has been raising concerns, at both European and national level, about the State’s ex gratia scheme since 2015. Specifically, the Commission has warned that the scheme’s requirement that survivors of historic child sexual abuse in schools must establish a prior complaint of child sex abuse does not comply with the 2014 ruling of the ECtHR in O’Keeffe v. Ireland. In October 2015, the Commission reported to the Council of Europe’s Committee of Ministers its concern that the State has adopted an unduly restrictive and narrow approach to the category of “victim” of abuse in its interpretation of the ECtHR ruling. A further submission to the Council of Europe also followed in October 2016 on the State’s ongoing restrictive interpretation. The Commission is now calling for the Government to quickly overhaul its ex gratia scheme to ensure effective remedy to those who are being denied justice by State inaction. The need for Government to address these findings without further delay is heightened by the fact, that many survivors of abuse, are advancing in age and have been seeking not only compensation but also an acknowledgement of the wrong done to them since their childhood. Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, stated:
“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.” 
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Editor’s notes

Chronology of Commission Concerns: O’Keeffe v Ireland In the case of O’Keeffe v Ireland (Application no 35810/09) the applicant, Louise O’Keeffe, had been sexually abused in 1973 while attending a school owned (through trustees) by a Roman Catholic bishop, and managed by a local priest. The abuse was carried out by the school’s principal teacher, who was an employee of the school manager. In its decision of 28 January 2014 (available here: CASE OF O’KEEFFE v. IRELAND), the Grand Chamber of the European Court of Human Rights held that the State had violated Articles 3 and 13 of the European Convention on Human Rights, in that it had failed to fulfil its obligation to protect Louise O’Keeffe from inhuman and degrading treatment, and had failed to provide her with an effective remedy. Following the decision of the European Court of Human Rights in O’Keeffe, Ireland has been required to submit action plans to the Committee of Ministers on a periodic basis, outlining the individual and general measures adopted to implement the judgment of the Court. The Irish Human Rights and Equality Commission has previously made submissions to the Committee of Ministers in relation to the execution of the judgment in O’Keeffe. The State’s action plans, together with submissions made by the Irish Human Rights and Equality Commission and a number of non-governmental organisations, are available here: http://www.coe.int/en/web/execution/submissions-ireland

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State. The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.