Carol Nolan (Offaly, Sinn Fein)
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Tá mé buíoch go bhfuil an deis seo agam labhairt ar an topaic fíorthábhachtach seo um thráthnóna.

I want to discuss the State’s approach to the Louise O'Keeffe ruling and in particular, its interpretation of that ruling and the impact for survivors of sex abuse at State schools. As we know, Louise O'Keeffe was involved in a 20 year legal battle against the State for justice. It was only when she went all the way to the European Court of Human Rights that she received justice and an acknowledgement of the horrific abuse inflicted on her as a school child and of the failure of the State to protect her from that abuse.

Unfortunately, for hundreds of other school child sex abuse survivors, their day of justice never came and the State has done everything in its power to ensure that, for the majority, it never will. Due to the very narrow interpretation of the ruling of the European Court by the State, many survivors have been effectively locked out of the ex gratiascheme. In particular, the State’s interpretation that a prior complaint of sex abuse must have been made in order to fulfil the terms of the scheme has meant that a lot of survivors have been deprived of a remedy for the failure of the State to protect them. The Irish Human Rights and Equality Commission, IHREC, and the Child Law Clinic of University College Cork, which was heavily involved in the original case, have made numerous submissions to the Council of Europe on this point and have clearly stated that this interpretation is not in line with the O'Keeffe ruling. In its latest communication on this issue, the IHREC also pointed out that the most recent unsuccessful claims brought to the High Court were found to be statute barred and no finding was made that the facts of the cases were distinguishable from the facts in O'Keeffe case.

I am aware of situations where survivors of abuse were written to by the State and told that if they did not drop their cases, they would face thousands of euro in costs. That is not right. As we know, after the initial unsuccessful Supreme Court case by Louise O'Keeffe, 210 plaintiffs dropped their cases. They felt forced to do so and they are now statute barred from bringing their cases to court and are not eligible under the payment scheme. Out of 350 cases, just six have been settled under the scheme and a relatively small number have been processed. Will the Minister for Education and Skills commit to ensuring that survivors have access to the justice they deserve by implementing the O'Keeffe ruling in full? I ask him to widen the terms of the scheme to ensure that those who dropped their cases as a result of letters sent to them by the State containing threats of legal costs can access the scheme.

Richard Bruton (Dublin Bay North, Fine Gael)
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The legacy of sexual abuse against children, whether in residential institutions, day schools, or in any other setting, is truly appalling. It is impossible even to imagine what some of these people have gone through. I have enormous sympathy for anyone who suffered abuse. When the trust between a child and an adult responsible for his or her care is breached, the child's life is altered completely.

It has been a major project of recent Governments to deal compassionately, humanely and fairly with the victims and survivors of abuse. In the Louise O’Keeffe case, in January 2014, the European Court of Human Rights found that the State has liability in these cases in specific circumstances, namely where there was a prior complaint against the abuser in question and where the case is not statute barred. In the three years since the O’Keeffe judgment the Government has submitted six action plans to the Council of Europe outlining the response of the State to the issues identified in the ruling. These include the review initiated by the Government of current and planned child protection mechanisms in the school system to ensure that they meet best practice standards. The action plans also refer to various legislative developments, particularly the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, which was commenced in April 2016 and requires vetting of all staff to be undertaken. In addition, the Teaching Council (Amendment) Act, 2015, aIl sections of which were commenced by November last year, provides for the vetting of all teachers. The Children First Act 2015, a number of sections of which have been also been commenced, provides for the mandatory reporting of incidences by persons in positions of responsibility. The action plans also refer to the updated child protection guidelines for schools in respect of the commencement of statutory requirements for Garda vetting.

On the question of compensation, the Government has put in place a process to provide compensation for all victims of sexual abuse who come within the terms of the judgment. Following the Louise O’Keeffe judgment, the Government agreed that out of court settlements be offered to survivors of abuse whose cases come within the terms of that ruling and are not statute barred. Subsequently, in July 2015, the Government approved proposals, on the same basis, to offer ex gratia payments up to a maximum of €84,000 to those who initiated legal proceedings in cases of school child sexual abuse against the State but who subsequently discontinued their claims.

Persons who believe that their cases come within the criteria can contact the State Claims Agency and provide supporting evidence. At this stage, I cannot say how many cases in this category will satisfy these criteria. Where there is a disagreement between the State Claims Agency and the individual as to whether their circumstances come within the terms of the European court’s judgment, provision is being made for the application to be reviewed by an independent assessor. In these settlements, the State will not be covering the liabilities of the

perpetrators, school managers, patrons or other co-defendants. A person who suffered abuse or injury in school had recourse to report the matter to the relevant school or to the statutory authorities. Victims of sexual assault may bring cases for compensation through the courts for the injuries and loss they have suffered.

While I cannot comment on individual cases, where plaintiffs institute claims against the State in relation to historic child sexual abuse which are not statute barred and come within the terms of the Louise O’Keeffe ruling, the State Claims Agency is authorised to make settlement offers. The agency continues to engage with litigants’ solicitors to clarify the circumstances of new cases and to make settlement offers where the claims come within the terms of the European Court’s ruling and are not statute barred. Survivors can submit their details to the State Claims Agency. Where the agency does not accept that the criteria are met, the facts will be reviewable by an independent assessor who is being appointed.

Carol Nolan (Offaly, Sinn Fein)
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I thank the Minister for his response but I am extremely disappointed. I have met a group of sex abuse survivors, the Creagh Lane group in Limerick, whose lives have been destroyed. We need action here. We must defend those people and make sure that they get justice.

The letters that were sent to the people who were claiming that they were abused were sent during the Dáil's summer recess. Several victims approached their local representatives about the letters but Deputies could not challenge the Minister or the Government. There is a question to be answered regarding the timing of the sending of those letters.

It is blindingly obvious that this scheme is not fit for purpose. It is my understanding that a relatively low number of applications have been processed to date and the vast majority of them have been declined due to the narrow criteria used. Clearly the Government has not listened to the Irish Human Rights and Equality Commission on this matter. Even the courts have been critical of the approach of the State on this particular issue. In his judgment last year, Mr. Justice Barrett said that survivors might be forgiven for wondering if they will ever live to see the day when such injustice as may have been done to them is finally righted by a "foot-dragging State", to the extent that money can ever be a remedy for certain injuries suffered. Yet in the aftermath of that judgment, the State Claims Agency wrote to 107 plaintiffs again to tell them that they faced huge legal bills if they did not drop their cases. Seven of them did drop their cases. This happened on the Minister's watch.

The Government's approach on this issue is wrong, both morally and legally. It is causing untold distress to survivors of school child sex abuse. The Government appears to be more concerned with limiting damage to the State coffers than providing comfort and closure to survivors. That is what the survivors want. All that the members of the aforementioned group from Limerick want is closure and that is what this scheme is designed to do. I once again urge the Minister to reconsider the Government's approach to this issue and to ensure that survivors can access the justice they deserve. It is the least the Minister can do.

Richard Bruton (Dublin Bay North, Fine Gael)
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I am no lawyer but the European Court of Human Rights has ruled that the State has a liability where there was fault involved.

The fault that it has established is where there was prior abuse established and it failed to act. That is the criterion that is being applied. The State did not run the schools in question and the court established that had the State been aware or should have been aware because the information was brought to the attention of those in the schools and the State could have been aware, that is when the liability occurs on the State. We were following the European court judgement in this respect. As I outlined, we are providing compensation that does not require people to go to court to get compensation where those circumstances were met.

Obviously, we have a wider obligation which is also part of the court ruling, which is to report on the protections we are putting in place to ensure children in our schools are now fully protected. As I outlined in the reply, a considerable effort has been made to put new procedures in place as follows: the compulsory vetting of all sorts of staff, including of teachers through the Teaching Council; now the Children First guidelines and in time the mandatory reporting requirements; and the obligation for child safety statements to be developed and for risk assessments to be put in place by these institutions. The law is continually evolving to ensure we protect children in these circumstances. The response of Government has been in accordance with the court ruling where State liability only arises in those circumstances where the State knew of the prior offences that were involved.