Louise O’Keeffe’s long and courageous battle to have the State held liable for the abuse she suffered at her primary school in Dunderrow, Co Cork, was deemed at the time to have likely consequences for the finances of the State.

This was because there were other alleged victims waiting to see if the European Court of Human Rights would find against the rulings of the Irish courts in relation to State responsibility for sex abuse in schools run by boards of management and not owned by the State. Reports said some 200 people might be affected.

When O'Keeffe lost in the Supreme Court in 2008, the State Claims Agency wrote to some of these people to say they should drop their cases or the State would pursue them for costs. Quite a few withdrew their claims against that background.

Twelve months after the January 2014 O’Keeffe ruling, the State said it would make out of court settlements with extant claims that fell within the terms of the ruling, and that were not statute barred. Seven months later it said it would make out of court settlements with claimants who had discontinued their cases where the cases came within the terms of the Strasbourg court’s ruling and were not statute barred at the time of discontinuence.

O’Keeffe’s school was owned, via trustees, by the local Roman Catholic bishop and managed by the local Catholic priest. The abuser was an employee of the school manager.

Failure to protect

The Irish courts had ruled that the State could not be held vicariously liable for the failings of the school but the Strasbourg court ruled that the State had failed to protect O’Keeffe. There was, it said, an inherent obligation on the part of the State to protect children from ill-treatment. The State knew, or should have known, at the time that there was sexual crime against minors occurring. Even though it relinquished control of education to non-State actors, it still had an obligation to establish measures to protect children. (It did so in the early 1990s.)

The position adopted by the State in the wake of the ruling is now being challenged by the Irish Human Rights and Equality Commission. It is contesting the stance that a prior complaint had to have been made against an alleged abuser for a claim to fall within the terms of the Strasbourg ruling.

There had been a prior complaint to the school manager about O’Keeffe’s abuser, but this was “irrelevant” to the court’s finding that the State had failed in its obligations, the commission said in a submission last week to the Council of Europe.

It claims Ireland, in dealing with people affected by the O’Keeffe judgment, is adopting an “overly restrictive interpretation” in holding that it only applies in cases where there had been a prior complaint against the alleged abuser.

The commission says the criteria being applied by Ireland mean that people who claim they suffered abuse in circumstances similar to those of O’Keeffe, are being deprived of an effective remedy.

Where the State Claims Agency decides that claims don’t match the criteria, the cases are to be defended in court.

Few settlements

“The restrictive impact of the application of these criteria is illustrated by the fact that just seven offers of settlement have to date been made by the State Claims Agency”, the commission said in its submission.

The commission has also said that the State, in its response to the Strasbourg judgment, has pointed to recent decisions in the Irish High Court concerning historic child sex abuse cases in which, the State has said, there was no liability for the State because there had been no prior complaint.

The commission has said that this is a misinterpretation by the State of the decisions of the High Court and that the court made no such findings.

The commission wants the Council of Europe to ask the Strasbourg court if its finding in the O’Keeffe case was “contingent upon the existence of a prior complaint of sexual abuse against [the abuser] to the school manager”.

Last month Sinn Féin's Carol Nolan asked the Minister for Education, Richard Bruton, how many school sex abuse litigants had been written to by his department and told that if they took no further legal action, they would not be pursued for costs.

He said the State Claims Agency, which manages such claims, had issued letters to solicitors representing 107 cases, and that to date seven had chosen to discontinue their claims.