For Louise O’Keeffe, the veteran of a long, drawn-out campaign that began more than 15 years ago, this was a resounding vindication.
O'Keeffe, then aged nine, was abused by Leo Hickey, the former principal of Dunderrow National School in Co Cork in the early 1970s. At issue here was whether the State was partly to blame for that abuse because of its failure to prevent and detect it. By 11 votes to six, the Grand Chamber concluded that it was. Ireland, it found, was in breach of two articles, 3 and 13, of the European Convention on Human Rights, which prohibit inhuman and degrading treatment and set down the right to an effective remedy.
“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 . . . nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to National Schools.”
Effective control
Crucially, in the court's view, the State did this without putting in place any mechanisms 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. Any system of detection and reporting of abuse which allowed over 400 incidents of abuse to occur in O'Keeffe's school for such a long time, the judges remarked, had to be considered ineffective.
The Strasbourg court acknowledged that the case had to be seen against the facts and standards of 1973 as well as the "unique" model of primary education in Ireland, where the State provides for education (setting the curriculum, licensing teachers and funding schools) but the day-to-day management of primary education is provided by national schools.
But this doesn’t get the State off the hook, in the court’s opinion. There is an “inherent obligation” on the Government to protect children from ill-treatment by adopting special measures and safeguards. “A State could not absolve itself from that obligation by delegating to private bodies or individuals.”
National law
Nor could it be freed from that obligation since, as suggested by the Government, O'Keeffe could have chosen alternative schooling options such as home-schooling or fee-paying schools. As the judges point out, primary education was obligatory under national law and O'Keeffe had no "realistic and acceptable" alternative at the time other than to attend her local national school.
This is clearly a significant judgment. It’s a victory for O’Keeffe and will come as a relief for many other victims of abuse – 135, by some estimates – who dropped their own claims when the Supreme Court rebuffed O’Keeffe. Some may well now go back to court. Alternatively, the Government may decide to put in place a redress scheme.
A key question for the State and human rights campaigners is whether the principles set down in yesterday’s judgment could apply more widely. A notable feature of Ireland’s “unique model” of primary education is that most schools are under the auspices of religious – read Catholic – bodies.
According to the European court, O’Keeffe had “no realistic and acceptable alternative” than to attend her local national school. Might the court find that non-religious parents have no choice but to send a child to a school that offends against their philosophical or religious convictions, and could this pose problems for the State?
More broadly, the court has accepted the principle that, in primary education, delegating to private actors the provision of a key State function does not absolve the State of responsibility to regulate and protect. To what extent might the same hold true in health, housing and other vital services?
