Global Human Rights Defence

Ireland Continues to Withhold Justice From Survivors of Sexual Abuse in Schools
Source: Teachta Dála/Tithe an Oireachtas, date. Retrieved from (https://www.oireachtas.ie/en/visit-and-learn/how-parliament-works/role-of-the-oireachtas/dail-eireann/).

Author: Hanorah Hardy, Europe Team

Introduction

The Irish Human Rights and Equality Commission (IHREC) has told the Council of Europe’s highest body, the Council of Ministers, that a new state redress scheme in Ireland designed to support survivors of sexual abuse in schools, still has a number of significant flaws that must be remedied. With this redress scheme, the Irish State is continuing to fail survivors of child abuse more than seven years after the European Court of Human Rights (ECtHR) judgment was won by Louise O’Keeffe.

O’Keeffe V Ireland

A redress scheme was implemented after the case of O’Keeffe V Ireland. Ms. O’Keeffe was one of many children who were sexually abused by their school principal in 1973. After complaints against the teacher were ignored by the school for several years, the abuse came to the attention of the Irish authorities in 1996, when the perpetrator was charged with 386 criminal offences related to the abuse of 21 former pupils (Casey, 2021).

O’Keeffe brought a civil claim in the Irish courts, but the State denied that it was liable for the abuse that occurred. The case then went to the Irish supreme court, where they upheld the previous judgement negating any responsibility for the abuse (O’Keeffe V Hickey [2008]). Subsequently, O’Keeffe brought the case to the European Court of Human Rights, claiming that the State had violated the European Convention of Human Rights (ECHR) by failing to protect her from sexual abuse in the school and by not having an effective remedy against the State, who failed to protect her. In 2014, the Grand Chamber of the ECtHR ruled that the Irish State had a positive obligation to protect against any potential risks of child abuse in primary schools, and had failed to execute this obligation because they did not put in place any child protection mechanisms when they ceded control of the primary schools to the Church. This constituted a violation of Article 3 of the ECHR, and the failure of the Irish State to provide Louise O’Keeffe with an effective remedy violated Article 13 (O’Keeffe V Ireland, [2014]).

Implementation of the Judgement

Following the case, the Irish government adopted a narrow interpretation of the 2014 ECtHR judgement, meaning the redress scheme has been under constant scrutiny from Irish NGOs, legal organisations and the survivors themselves. Following the judgement, the Government established a redress scheme that would provide compensation to other survivors of abuse in primary schools, but imposed a condition stating that applicants had to demonstrate that their abuse had occurred in the aftermath of a prior complaint of abuse that was not responded to (CLC, 2021). This prerequisite was not in line with the terms of the O’Keeffe case, and in 2019 the Independent Assessor ruled that the “prior complaint” condition was incompatible with the ECtHR judgement in O’Keeffe (CLC, 2021). Judge Iarfhlaith O’Neill concluded that the State misinterpreted the Court’s judgment and that this resulted in the denial of any access to redress for many victims of child sexual abuse. Judge O’Neill ruled that the State’s interpretation represented “a fundamental unfairness to applicants” and involved “an inherent inversion of logic”, because of its insistence that survivors of sex abuse in primary schools need to prove that there was a complaint made to authorities about their abuser before their abuse took place (O’Kelley, 2019).

Despite national scrutiny and calls to widen the provisions of the redress scheme, the scheme remains unfoundedly narrow and continues to force many victims to go through the lengthy court process to secure justice, seven years after the judgement was given. The narrow interpretation has seen only 7 cases settled by the State to date, with only 19 applications having reached the Independent Assessor since its announcement in July 2015 (HIREC, 2019) Furthermore, in a letter published in December 2021, IHREC set out 3 significant concerns around the redress scheme that must be addressed in order to obtain full justice:

  1. The redress scheme is only open to victims who sued the State before 1st July 2021 – This is a date chosen at random and provides the logic that victims who sued the State before this date are more deserving of redress than those who did not. Access to justice should not be determined on whether a person came forward with their experience prior to a certain date. 
  2. The scheme does not provide a sufficient compensation for survivor’s legal fees – to be eligible to be included in the scheme, applicants must have started legal proceedings prior to July 2021. This fails to make adequate provision for the legal costs which survivors have incurred. Applicants are eligible for only €4,000 towards legal costs— which are likely to be higher. This means for numerous people that the compensation given by the state will be spent on legal fees.
  3. It places the burden on survivors to explain how their abuse would have been prevented – Applicants are obliged to show how if the Department of Education Guidelines for Procedures for Dealing with Allegations or Suspicions of Child Abuse, which were established after the O’Keeffe ruling, had been in place at the time the sexual abuse occurred, there would have potential to alter the outcome or mitigate the harm suffered. If the State Claims Agency is not satisfied with the hypothetical situation the survivor provides, they can deem them not eligible for redress. The burden should not be on the victim to prove a hypothetical situation in order to be deemed worthy of support and justice. On this point, the IHREC stated that: 

There can be no objective justification for subjecting people whose childhoods were shattered by sexual abuse to such an insensitive exercise, which can be based on no more than a series of hypotheticals. Placing the onus on victims to explain how their abuse would have been prevented is redundant when, as the judgement of the Grand Chamber makes clear, Ireland failed to put in place effective mechanisms of child protection in Irish schools (HIREC, 2018).

The unjust interpretation of the jugdement can be seen as the Irish State withholding redress to the many survivors of sexual assault. They are failing to fulfil their obligation to provide support for the survivors, just as they have failed to do so since 1973. As a result of these failings, the IHREC has now asked the Council of Europe to transfer this case to an “enhanced supervision” process (Keena, 2021). This would require the Council to more closely monitor Ireland to ensure it is implementing the 2014 O’Keeffe ruling in line with their standards. 
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission, stated: 

Redress for children subjected to life-changing abuses by trusted adults in what should have been a safe place of learning, is being treated by the State as a tick box exercise rather than one which responds to survivors’ needs. Once again, Ireland is failing to adopt the humility and respect required in dealing with victims of State wrongdoing, and instead taking a defensive position, informed by suspicion and distrust. As victims grow older, we cannot allow the State to run down the clock on their right to effective redress (ibid).

This Irish government is also currently revising another redress scheme for the survivors of the Mother and Baby Homes, so it is imperative they adequately execute their obligation to protect their people and provide them with the compensation they deserve. The judgement must be implemented as a whole, not merely in a narrow reading, ensuring no one is without recourse to justice.

Sources and further reading:

News Articles

Colm Keena, “State ‘withholding redress’ from school abuse survivors seven years after court ruling.” The Irish Times (Dublin, 07 July 2021) Available at: https://www.irishtimes.com/news/crime-and-law/state-withholding-redress-from-school-abuse-survivors-seven-years-after-court-ruling-1.4614230

Emma O’Kelly, “Judge rules State misinterpreted ECHR abuse ruling” RTE (Dublin, 9 July 2019) Available at: https://www.rte.ie/news/2019/0708/1060862-echr-ruling-misinterpreted/

Jess Casey, “Flaws in Ireland’s redress scheme for school sexual abuse victims raised in Europe” The Irish Times (Dublin, 20 December 2021) Available at: https://www.irishexaminer.com/news/arid-40769496.html

Case law

O’Keeffe V Hickey [2008] IESC 72 (SC) Available at: file:///C:/Users/Technician/Downloads/43450_45fa3e2b7095419b9b6b92e47e6e7a85.pdf

O’Keeffe v. Ireland, App. No. 35810/09 (ECtHR, 28 January 2014)

Reports

Child Law Clinic, Redress of Survivors of Sexual Abuse in National School (CLC – 2021). Available at: https://www.ucc.ie/en/childlawclinic/redressofsurvivorsofsexualabuseinnationalschool/

Irish Human Rights and Equality Commission, New Redress Scheme for Victims of Historic Schools Abuses Continues to Fail Victims. (IHREC – 19 December 2021) Available at: https://www.ihrec.ie/new-redress-scheme-for-victims-of-historic-schools-abuses-continues-to-fail-victims

Irish Human Rights and Equality Commission, Submissions to the Independent Assessor by the Irish Human Rights and Equality Commission (IHREC – 2018) available at: https://www.ihrec.ie/app/uploads/2018/09/Submission-by-IHREC-to-Independent-Assessor-1-2.pdf

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Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

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As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
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Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
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She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
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Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
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Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
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Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
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Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

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Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

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Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.