Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

Like all Members, I welcome the apology given by the Taoiseach yesterday on the floor of the House and reiterated today by the Minister, Deputy McHugh. In this the centenary year of the First Dáil, we should remember the words of the Democratic Programme written by Tom Johnson more than 100 years ago. It states:

It shall be the first duty of the Government of the Republic to make provision for the physical, mental and spiritual well-being of the children, to secure that no child shall suffer hunger or cold from lack of food, clothing, or shelter, but that all shall be provided with the means and facilities requisite for their proper education and training as Citizens of a Free and Gaelic Ireland.

It is clear that the Government has failed to meet that very important commitment.

In 2014 the European Court of Human Rights delivered a landmark majority judgment in favour of Louise O'Keeffe. For 15 years she had sought redress. It came 40 years after her abuser, Leo Hickey, had been convicted for abusing her while principal of her school. The judgment found that the State had been negligent in failing to protect her from abuse while she was in school and that it should compensate her. Her human rights had been breached. Unbelievably, the State did not apply this important principle in cases involving other victims, but, in effect, perpetuated the abuse and thereby exacerbated the injury to the unfortunate people concerned. In many of the cases, the abuse was perpetrated by private individuals. However, the State failed in its duty to supervise or check the individuals who had committed the horrendous crimes of abuse. The State has since dragged its feet and done all in its power to frustrate the judgment which aimed to ensure those who had been abused physically or sexually in schools received appropriate compensation. The hands-off approach to the school system has continued for many years. The Government and the State prefer to pretend that the responsibility lies with school boards of management, notwithstanding the fact that the Department of Education and Skills is the only financier of the employees involved. The reality is that the State pays the wages of teachers, supervises the school curriculum, funds the operation of schools and inspects them.

A legal fiction was employed to escape liability. I have been involved in cases where this principle has been rigidly applied by those on the side of the State. All too often the State is prepared to wash its hands of responsibility for the national education system. It is time to undo the wrong perpetrated against Louise O'Keeffe and hundreds of others. The legal gymnastics must end. In the words of the retired Mr. Justice Iarfhlaith O'Neill, the conclusion reached by the State was inherently illogical. I am unequivocally asking the Minister to call off the lawyers and ensure the State Claims Agency deals with the claims quickly.

There is no doubt that the interpretation of the judgment by the Government, its advisers and, more particularly, its legal advisers was wrong. There must be an apology for the impossible standard that was set for ex gratiapayments to be made, namely, that claimants were obliged to show that their abuser was the subject of a prior complaint. It set a hurdle that no one could meet and was tantamount to furthering the abuse faced by the victims. The condition is impossible to defend. At the heart of the ECHR ruling was that not only was the State was liable on the basis of previously complained of sex abuse by the perpetrator, but that there was also a glaring failure by the State to set up a proper structure to protect children from sexual abuse. That was made clear by Mr. Justice O'Neill who stated that for the State to insist on the prior complaint requirement as a precondition to eligibility involved an inherent inversion of logic and a fundamental unfairness to applicants. Can the Minister commit that the State will review all cases, including those pending and discontinued, as requested by Louise O'Keeffe and that the State will stop fighting victims?There is an obligation to so do.

The Taoiseach apologised yesterday in the Dáil and that is welcome. Those words must now be matched by deeds and actions. The Dáil voted previously to expand the terms of the ex gratia scheme. The Government must heed the voice of the people and the judgment of the European Court of Human Rights. More than 20 years ago, the then Taoiseach, Bertie Ahern, issued an apology. For more than 20 years, the State has engaged in evasive action to avoid responsibility. What worries me is that the current ex gratia scheme was constructed in such a way as to purport to comply with the thrust of the O'Keeffe judgment but not to do so in effect.

Some time ago, I read a brilliant article by Dr. Conor O'Mahony, a senior lecturer in child law at UCC. He was scathing in his view of the State and the fact that it had incurred more than €1.5 million in legal fees in order to avoid paying compensation to victims and through that action re-traumatised some of its most vulnerable citizens. As I stated, I have been involved in cases on behalf of plaintiffs who were sexually and physically abused. We brought them through the court process. Young children often do not disclose abuse at the time it occurs; such disclosures tend to be made later in life. As Deputy Connolly is aware as it applies to a place not 100 miles from where she lives, even if a complaint was made contemporaneously, the records of such complaints were often mislaid or lost. One had a better chance of winning the lottery than of getting the records from the religious order involved. As Dr. O'Mahony stated, the education system has been found to be inherently defective from a child protection standpoint. Compensating all of the victims - I know that it is not about compensation, but they deserve something - would cost €29 million, which is equivalent to one fiftieth or 2% of the cost of the indemnity given to religious orders for institutional abuse. Need we say more?

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