Tuesday, 1 June 2021
Saincheisteanna Tráthúla - Topical Issue Debate
I thank the Deputy for setting out the timeline from his perspective. It is important to say the legacy of sexual abuse against children, whether in residential institutions, day schools or in any other setting is harrowing. I understand the review of the ex gratiascheme is ongoing and it is the Minister, Deputy Foley’s intention to bring proposals to Government shortly in this regard.
It has always been the contention of the State that it bears no strict liability for abuse in day schools, given the unique context of ownership and management of the schools in the system. This has been strongly supported by key rulings in the domestic courts relating to the proceedings brought by Louise O’Keeffe against the State in 2005 and 2009. Following the Supreme Court judgment, 203 cases against the State were discontinued by litigants with a commitment by the State that costs would not be pursued against them. In 2014, as noted by Deputy Quinlivan, the European Court of Human Rights ruled that the State bore partial responsibility for what happened to Ms O’Keeffe because it had no system in place to act on the complaint that had already been made against her abuser. In response, and without legal obligation, the State settled the 22 cases where prior complaints had been made and not acted upon. It also opened an ex gratiascheme for those who had already discontinued their cases - there were 203 cases of those - and therefore had no way of coming back into the court system to establish their case that a prior complaint had been made against their abuser and not acted upon because of a lack of a system to address such a complaint. The scheme received 50 applications, none of which was successful.
The State appointed an independent assessor, retired High Court judge, Mr. Justice Iarfhlaith O’Neill. The role of the independent assessor was to assess cases of those who applied for the ex gratiascheme but were declined by the State Claims Agency. In 2019, Mr. Justice O'Neill was asked to review 19 cases which had not been successful in their application to the scheme. He concluded that 13 were entitled to a payment from the ex gratia scheme. These applications were originally declined because they failed to furnish evidence of a prior complaint. The State undertook to abide by the determinations of the independent assessor. All 13 applicants whom the independent assessor determined should be entitled to a payment from the ex gratia scheme have been offered payment. The current position is that 16 offers of payment have been made and I understand that, to date, all 16 have been accepted. The other six cases referred to the independent assessor are not entitled to a payment from the ex gratiascheme because they failed to meet the additional criterion of having discontinued their litigation cases. It should be noted that the report of the independent assessor is not a legal ruling or judgment.
It is important to recognise the scheme is addressed towards a specific cohort of historic discontinued day school sexual abuse cases which were impacted on by the European Court of Human Rights judgment in the O’Keeffe case.
The crux of the Deputy's question was on the ex gratiascheme. Work on this was delayed for a period due to the Covid-19 pandemic. However, the Department of Education and the Office of the Attorney General are devoting significant resources to progressing this matter and there has been intensive engagement on the most appropriate revisions for the ex gratiascheme, including examining in great detail the complex legal questions involved.