Judge finds State scheme misinterpreted ECtHR ruling on child sex abuse in primary schools

In an independent review of the Ex Gratia Scheme established after the O’Keeffe v Ireland decision, Mr Justice Iarfhlaith O’Neill has concluded that the State has misinterpreted the ruling of the European Court of Human Rights (ECtHR) by requiring ‘prior complaint’ of the historic child sex abuse.

Justice O’Neill was appointed in November 2017 as Independent Assessor to review the cases of applicants who were declined access to the Ex Gratia Scheme for survivors of child sexual abuse in primary school. The Scheme was a response to theO’Keeffe judgement which found the State vicariously liable for the child abuse experienced by Louise O’Keeffe in the 1970s.

The Scheme has long been criticised by bodies such as the Irish Human Rights and Equality Commission who warned that the State had adopted an unduly restrictive and narrow approach to the category of “victim” of abuse in its interpretation of the ECtHR ruling.

The determination of Justice O’Neill has found that the requirement of evidence of a ‘prior complaint’ imposed by the State was not compatible with the ruling of the ECtHR and risked further breaching the rights of survivors under the Convention. Judge O’Neill found the State’s interpretation constituted "a fundamental unfairness to applicants" and led to "an inherent inversion of logic".

Justice O’Neill reviewed 19 applications, of which he decided 13 that were refused on the sole ground of no ‘prior complaint’ were entitled to payment from the Scheme.  The State Claims Agency, which administers the Scheme, has now been asked to make payments to the applicants on foot of this positive decision. The decision will have implications for an estimated 350 survivors of historic sexual abuse that took place in primary schools.

Click here for the determination of Justice O’Neill.



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