The revised Department of Education scheme for compensating people who suffered sexual abuse while in day schools has been criticised on two separate fronts.
The ex-gratia scheme arises from the case won in the European Court of Human Rights seven years ago by Louise O'Keeffe, who was abused in the 1970s by Leo Hickey, then principal of the national school in Dunderrow, in west Cork.
The State denied any civil liability, saying it had not been directly involved in the running of the school. Ms O’Keeffe failed in her case against the State in the Irish courts. However she won at the European Court of Human Rights, in Strasbourg.
After her victory, the department set up a scheme aimed at delivering compensation to those who had initiated similar sexual abuse cases, but who had not progressed them or had discontinued them because of the attitude the Irish courts had taken. That scheme collapsed two years ago when it was ruled not to be in keeping with the Strasbourg ruling.
Up to 350 people might be in a position to access the now revised scheme, which involves payments of €84,000 for those who qualify.
However Prof Conor O’Mahony, the special rapporteur on child protection, has concerns the revised scheme might again prove not to be fit for purpose.
One of the reasons for his concern is a new criteria for qualification. It says applicants must show that if guidelines issued to schools in the early 1990s had been in place at the time the sexual abuse occurred, “there would have been a real prospect of altering the outcome or mitigating the harm suffered”.
“It is entirely speculative and subjective to ask whether a set of child protection procedures which were not in place when the abuse occurred might have made any difference,” according to Mr O’Mahony.
“The salient point is that they were not in place. This was the basis on which the [Strasbourg] court ruled in favour of Louise O’Keeffe.”
A restrictive approach on the part of the department could lead to many of the applications failing, he said. He is also unhappy with the fact that, in order to qualify for the scheme, a person has to have taken a legal case prior to the start of this month.
Ms O’Keeffe told The Irish Times that she too is unhappy that the scheme remains targeted at those who have taken legal cases.
At the time Hickey was convicted, 21 former students came forward to tell the court of being abused by him she said, but she was the only one who had taken legal action.
The other former students cannot access the department’s revised scheme, though they too had been abused by a man who has since been convicted for child abuse.
“There are 20 other girls from that school who gave evidence in that court, who came forward as witnesses, and they are left hung out to dry.”
She says there are many others who are in a similar position but the department is trying to avoid being held responsible for their cases.
“All they can see is numbers. They are not seeing the human being. They are not seeing sexual abuse on a child and the devastating effect it has. If they saw that, and if they took account of that, then they would not have narrowed and put a deadline [on having taken legal action to qualify for the scheme] in the way they have.”
The revised scheme is being reviewed by the the Irish Human Rights and Equality Commission (IHREC), which earlier this month issued a report criticising Ireland’s “restrictive” response to the O’Keeffe ruling.
The department, for its part, says that the purpose of the ex-gratia scheme is to address those people who were in the court system and were affected directly by the O’Keeffe ruling.
“It is not a general redress scheme,” said a source. “It is an ex-gratia scheme set up specifically to deal with the [Strasbourg] judgment.”