Monday 21 October 2019

Ex-High Court judge finds in favour of 13 survivors of child sex abuse whose claims for compensation were previously refused

Retired High Court judge Mr Justice Iarfhlaith O’Neill
Retired High Court judge Mr Justice Iarfhlaith O’Neill
Katherine Donnelly

Katherine Donnelly

A RETIRED High Court judge has found in favour of 13 of 19 survivors of child sex abuse in day schools whose claims for compensation had previously been refused.

Judge Iarfhlaith O’Neill’s determination clears the way for 13 of 19 survivors,  whose claims were declined by the State Claims Agency (SCA), to receive payments of up to €84,000 compensation, as well as legal expenses.

The SCA has been asked to make the payments an immediate priority, according to the Department of Education.

It arises from the landmark victory for Louise O’Keeffe  in 2014, when the European Court of Human Rights ruled that the Irish State had been negligent in failing to protect her from abuse in national school.

It opened the doors for similar cases and, in 2015, an Ex Gratia Scheme was set up to deal with claims.

It was put in place to facilitate those who instituted legal proceedings in relation to day school child sexual abuse and who had discontinued those proceedings in the wake of judgments in the Irish Courts, but before the subsequent European court judgment in the O’Keeffe case.

But the State had insisted that anyone claiming under the scheme had to produce evidence that they were abused by a school employee against whom a prior complaint of sexual abuse had been made.

Judge O’Neill was appointed in 2017 as an Independent Assessor to adjudicate on claims that had been declined under the Ex Gratia scheme. He assessed 19 applications.

He found that ‘prior complaint’ condition was incompatible with a judgment from the European Court of Human Rights in the case of Louise O’Keefe.

Judge O’Neill said it risked a “continuing breach” of rights.

He said the inclusion of this condition “effectively excludes any possibility of a holistic and flexible approach to the settlement of historic child sexual abuse claims”.

In the other six cases, Judge O’Neill said they did not fulfil an additional ground for eligibility – that they did not have litigation against the State that they had discontinued - and were not entitled to a payment from the Ex Gratia Scheme.

A Department of Education spokesperson said that anyone who had relevant proceedings against the State which were discontinued of foot of the domestic court’s judgments and before O’Keeffe ruling, and which were not statute barred at the time of discontinuance, were potentially eligible for the scheme.

Education Minister Joe McHugh said: “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.

He said the ruling was  a complex one which would “require in-depth analysis before decisions are taken on how to respond to the issues raised.”

The Irish Human Rights and Equality Commission welcomed the O’Neill decision.

The Commission has been raising concerns, at both European and national level, about the scheme since 2015, specifically in relation to the requirement that survivors of historic child sexual abuse in schools must establish a prior complaint of child sex abuse.

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