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Column If the State had done the right thing, Louise O'Keeffe would never have been abused

In a landmark ruling today, the European Court of Human Rights said the Irish State is liable for the sexual abuse of children in schools where it had failed to put effective child protection measures in place.

TODAY’S RULING BY the European Court of Human Rights that the Irish State is liable for its failure to take steps to prevent sexual abuse of children in primary schools represents long-overdue vindication for Louise O’Keeffe.

For 20 years, she has sought to establish that the blame for her ordeal did not lie exclusively at the hands of her abuser. Had the State done what it ought to have done, and put in place effective child protection measures, she would never have been abused in the first place. The decision is a tribute to her courage and tenacity, and a damning indictment of the State’s abdication of responsibility towards children over many decades.

Louise O’Keeffe was the victim of a series of sexual assaults in 1973 by the school principal at Dunderrow National School, Leo Hickey. Complaints had been made against Hickey but, in line with Department of Education policy, they were directed to the local priest. The Department never became aware of them, and Hickey continued to teach at the school, committing over 400 counts of abuse on over 20 victims. After further allegations, he resigned his post and moved to another school, where he taught for another 22 years until retiring in 1995.

In 1996, complaints were made to the Gardaí regarding abuse at Dunderrow. Hickey pleaded guilty in 1998 to 21 sample charges relating to sexual abuse of girls under his care at Dunderrow, and was sentenced to three years in prison. Louise O’Keeffe was awarded IR£53,000 by the Criminal Injuries Compensation Tribunal. She later instituted civil assault proceedings against Leo Hickey in 1998, and was awarded in excess of €305,000 in compensation.

Highlighting the State’s role in allowing this abuse to continue

However, determined to highlight the State’s role in allowing this abuse to continue for so long, Louise O’Keeffe sued the State for vicarious liability for Hickey’s actions. In 2009, the Irish Supreme Court ruled against her on the basis that Hickey, although paid by the State, was employed by the school board of management. Therefore, the State bore no responsibility for the abuse.

In her application to the European Court of Human Rights, she argued that rather than being vicariously liable for Hickey’s actions, the State was directly liable for its own inaction. No measures were in place that would effectively detect and prevent child abuse in primary schools. Had such measures been in place, Hickey would have been removed from his position far earlier and his litany of abuse would never have been allowed to go as far as it did.

The Court’s judgment today accepted this argument. It found that under Article 3 of the ECHR (freedom from inhuman and degrading treatment), it was an “inherent…obligation of government in the 1970s to protect children from ill-treatment”, and that this obligation was “of acute importance in a primary education context”. It rejected the State’s argument that it was not aware of the risk of abuse in Irish primary schools, since such crimes were being prosecuted “at a significant rate” at the time.

The State failed to fulfil its obligation when it entrusted the management of the primary education of the vast majority of young Irish children to denominational schools, without putting in place any mechanism of effective State control against the risks of abuse occurring. Complaints were directed away from State authorities towards the school managers (usually parish priests), and school inspectors had no obligation to inquire into or monitor teachers’ treatment of children.

Ultimately, the case came down to a statement of the obvious by the Court: in a case where a single teacher committed over 400 counts of sexual abuse on over 20 victims without being detected by the State, the child protection system simply had to be considered ineffective.

Irish law did not offer her an avenue

In addition to the violation of the right to freedom from inhuman and degrading treatment under Article 3, the Court also found that there was a violation of the right to an effective remedy under Article 13. Louise O’Keeffe had been able to establish Leo Hickey’s culpability for her abuse before the courts, but the State was also culpable, and Irish law did not offer her an avenue to establish this culpability and to access an effective remedy for it.

After over 15 years of legal battles, Louise O’Keeffe has finally had her personal position vindicated, but significance of the case goes further than this. It clearly establishes that the State cannot wash its hands of responsibility for what happens in denominational schools. It is not enough to write a cheque and then turn your back: a proactive role must be taken to ensure that the rights of children are vindicated in the school system, regardless of who owns or manages the school.

In the context of historical abuse cases, there is now an onus on the State to accept responsibility for its failure to implement effective measures to prevent and detect such abuse, and to provide survivors with a remedy for this failure. Whether this takes the form of a new cause of action before the courts or a redress scheme remains to be seen.

For the future, the case will add further impetus to the development of a more robust child protection framework in Irish schools. While Louise O’Keeffe won due to the absence of almost any child protection measures in 1974, a core message of the judgment is that even more is expected of the State in this respect today. The Ministers for Education and Children should outline clearly how they plan to respond to the judgment at an early opportunity.

Finally, as a judgment of the European Court of Human Rights, the decision has the same implications in 47 countries across Europe. Thus, after decades of being ignored by the State, Louise O’Keeffe has made a key contribution on the international stage in bringing about State action to prevent child abuse.

Dr Conor O’Mahony (@ConorUCCLaw) lectures in Constitutional Law and Child Law at University College Cork. He was one of the UCC Child Law Clinic (@ChildLawUCC) members who worked with Louise O’Keeffe’s legal team, Ernest Cantillon & Co, on the application to the European Court of Human Rights.

Read: Landmark European judgement finds Irish State liable for sexual abuse

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37 Comments
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    Mute Brendan McGill
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    Jan 28th 2014, 7:08 PM

    Well done to Louise for sticking at it and congratulations on the ruling.

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    Mute Sean Dempsey
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    Jan 28th 2014, 7:20 PM

    What a brave woman .showed great courage taking on the state and winning

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    Mute Beabad Bishop
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    Jan 28th 2014, 7:29 PM

    Mr Justice Eamon De Valera ruled against Louise when she brought her case to the high court. I believe he’s a direct descendent of one of the founders of Fianna Fáil and a staunch church supporter . No surprise why the lack of justice .

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    Mute Harry Price
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    Jan 28th 2014, 9:33 PM

    church, state and judicial wrongs with political intent .. whats new

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    Mute Catherine Mill
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    Jan 28th 2014, 11:32 PM

    yes, because the church run the legal system with their Red Mass for legal profession annually and the quangos controlled by the RC church too.

    Ireland does not have a justice system- just a legal system.

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    Mute Henry Fleming
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    Jan 28th 2014, 7:30 PM

    I hope the state and Mr justice Eamon de Valera apologise to this courageous woman?

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    Mute Susie Elliott
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    Jan 28th 2014, 7:43 PM

    As Louise’s solicitor, Ernest cantillon said today, a sought after apology is worthless. Let’s hope for better for Louise and the other victims.

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    Mute Johnny Downes
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    Jan 28th 2014, 7:44 PM

    Agree. The European Judgment is an indictment of the State, It’s Legal Advisors, and the Politicised Judiciary we have here.

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    Mute Jerry Slattery
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    Jan 28th 2014, 8:42 PM

    With all due respects to Ernest an apology is probably the furthest thing from his mind.
    It’s where can you buy a cash register big enough to hold the cash that this case and the thousands more it is going to generate is what will worry him tonight ! JACKPOT TIME

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    Mute Catherine Mill
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    Jan 29th 2014, 11:42 PM

    We are the state.

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    Mute Tristan Ua Ceithearnaigh
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    Jan 28th 2014, 10:24 PM

    Louise O Keefe has been nothing short of heroic in her fight for justice and accountability, typically the Irish government continued to wash their hands of their responsibility to protect little children.
    Shame on the executive administrations of this country!!.
    The breath-taking treachery and conceit shown by successive administrations has been smashed by this brave woman who endured the violence perpertrated on her as a little 8 year old child and continued harrassment and indifference and threat of losing her house for the audacity of challenging the benign self-serving incompetence of this State.
    What manner of country is this!?
    What manner of people are there that show such smug indifference!!?.
    God bless you Louise O Keefe.
    You could have stopped your fight at the awarded compensation begrudged to you, but you chose to go all the way without fear in order to save other children.
    You are our Joan of Arc.
    After so long suffering as little 8 year old girl and for 40 years after, suffering in silence you fought back when the time was ripe, you stood firm , you have fought the good fight and slain goliath.
    God love you and keep you.

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    Mute Patricia Ann McCarthy Moore
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    Jan 28th 2014, 10:48 PM

    Well said Tristan.

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    Mute Celia Murphy
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    Jan 28th 2014, 9:24 PM

    Well done Louise. You have shown tremendous courage and resilience,

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    Mute Patricia Ann McCarthy Moore
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    Jan 28th 2014, 9:56 PM

    Well done Louise. You used the payoff to highlight the injustices that society, (as it is called tried to cover up). You refused to be just another victim of the hypocrits and abusers. Your refusal will serve as an example to others who are being victimised and abused.

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    Mute Jerry Slattery
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    Jan 28th 2014, 7:09 PM

    From 1922 we should have had a proper child safety policy in every school along with SNAs and fully trained Child Social workers available .
    So easy to be right after events

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    Mute Paul Roche
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    Jan 28th 2014, 8:42 PM

    SNAs in 1922?

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    Mute Alan R
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    Jan 28th 2014, 9:18 PM

    No Jerry, had the State not relinquished its duty to provide an education to local priests, there mght maybe just have been somewhere other than the local priest to go with a complaint (which was the case here).

    Is it any wonder that the State “just didn’t know” when the complaint process was to go to the likes of Cardinal Brady, to be asked whether “you liked it” and then be sworn to secrecy on fear of eternal damnation.

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    Mute Noirin Kavanagh
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    Jan 28th 2014, 10:11 PM

    We need to separate church and state, make religion a private choice but give all children an equal opportunity to be educated. Lose the denominational nonsense, and let people who want to raise their children with religious beliefs and values take the responsibility for this on themselves. If all schools had been state run the state would have had to act responsibly, instead they abdicated responsibility to the churches. Of course they are liable! Louise is a wonderful, courageous woman who has changed things for the better not only for herself but also so many others across Europe. An inspiration to anyone concerned with justice.

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    Mute Paul Roche
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    Jan 28th 2014, 10:50 PM

    I’m confused. The State was at fault here. Not the Church.

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    Mute Dungeon Master
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    Jan 28th 2014, 10:57 PM

    Read the article Paul;

    ‘Louise O’Keeffe was the victim of a series of sexual assaults in 1973 by the school principal at Dunderrow National School, Leo Hickey. Complaints had been made against Hickey but, in line with Department of Education policy, they were directed to the local priest. The Department never became aware of them, and Hickey continued to teach at the school, committing over 400 counts of abuse on over 20 victims.’

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    Mute Alan R
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    Jan 28th 2014, 11:06 PM

    I think that is what everyone is saying Paul, – but if you read the article, you will see that Louise went to her local priest and the matter stopped there.
    ” Complaints had been made against Hickey but, in line with Department of Education policy, they were directed to the local priest.”
    ..and the ruling “clearly establishes that the State cannot wash its hands of responsibility for what happens in denominational schools.” etc. etc. The point being made is that the State needs to take responsibillity for the welfare of chldren in schools, and not leave it to the clergy who have failed beyond all belief,

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    Mute Paul Roche
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    Jan 28th 2014, 11:06 PM

    I read “Complaints had been made against Hickey but, in line with Department of Education policy,…”
    That places blame where it should belong.

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    Mute Noirin Kavanagh
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    Jan 28th 2014, 11:12 PM

    Unless I’m mistaken, the complaints were directed to the chairperson of the board of management who, in denominational school is almost always the parish priest. This gave the state a get out free card while the church did what we sadly know it did so frequently, I.e. nothing to protect the innocent victims but all to protect their reputation. By abdicating responsibility to the church, with no oversight the state allowed the abuse to continue. If they had been responsible, there is the possibility that the number of victims would have been fewer. I also thought the point was that the state was always responsible, but the church doesn’t come out of this smelling of roses. If church and education were separated, the complaint would have had to go the gardaí, or the dept. Of education.

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    Mute Catherine Mill
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    Jan 28th 2014, 11:25 PM

    Such was the Irish way- blame the victim.Keep the spotlight off the accuser and keep pointing the finger at the abuser, rip their lives apart and hope they suicide or go insane, etc….anything to protect the abusers.

    Irish secret courts still do it today and the public are kept in the dark.

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    Mute Alan R
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    Jan 28th 2014, 11:27 PM

    Paul, this gettng excruciating.
    Let us spell it out for you, its hard to make it any clearer…

    The State is to blame (as everyone, including you is saying, – read that a few times …Please), but it s to blame for washing its hands of its responsbility to the welfare of children by passing that responsibility on to the Dioceses, who as we all know do not exactly have an “exemplary record” when it comes to child welfare.

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    Mute Paul Roche
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    Jan 28th 2014, 11:28 PM

    I think you are mistaken. My understanding is that a complaint was made to the Department of Education.

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    Mute Catherine Mill
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    Jan 28th 2014, 11:30 PM

    Trained social workers??? they are mostly trained in policy- so not much use on ground level with little knowledge of child sex abuse, asking questions that are not age appropriate, threatening abused children with never seeing their parents and siblings again, ECT, etc.

    Social workers are trained box tickers with a huge % suffering Schadenfreude disease and others sadistic schadenfreude disease, deriving the same pleasure out of hearing details of child abuse.

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    Mute Alan R
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    Jan 28th 2014, 11:34 PM

    I don’t think so…
    “Complaints had been made against Hickey but, in line with Department of Education policy, they were directed to the local priest.”
    Read the last part, – “they were directed to the local priest”

    To add from the Irish Times:
    “Following complaints by parents to the priest responsible for the management of Dunderrow National School in the early 1970s, Mr Hickey left the school, moving to another school where he taught until his retirement in 1995. However, no complaints to the Department of Education or the Garda Siochana were made until the investigation in the 1990s.”
    ( http://www.irishtimes.com/news/crime-and-law/ruling-means-children-must-be-protected-in-schools-1.1670605?page=2 )

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    Mute Alan R
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    Jan 28th 2014, 11:34 PM

    (last comment was in response to Paul)

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    Mute Paul Roche
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    Jan 28th 2014, 11:53 PM

    Alan,
    The State lost here. Anything else that detracts from that is deflection. You seek to dilute Louise’s victory by employing a rationale that the SC did. The ECtHR deemed that point of view to be incorrect. Yes we know the Church has a history in this regard. The issue here is that it is the first time the State has found to be liable.

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    Mute Aisling Wynne
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    Jan 29th 2014, 4:56 AM

    You are aggressively agreeing! Yes the state is culpable for the first time as they failed to protect the child.

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    Mute Alan R
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    Jan 29th 2014, 9:25 AM

    Paul, you are largely agreeing with what we are saying, but seem to want to edit out all references catholic denominations from the narrative. Tto suggest the Church didn’t have a role to play is facile at best, dishonest and apologist at worst.
    I would actually say that when you state “The State lost here. Anything else that detracts from that is deflection. You seek to dilute Louise’s victory by employing a rationale that the SC did”, it is an insult to Louise’s victory, we need to understand in what way the State is culpable and rectify it for the future, – merely apportioning blame is useless if we don’t take corrective measures.

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    Mute Beabad Bishop
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    Jan 29th 2014, 3:36 PM

    All are complicit the state , the church , the priest who covered it up and the perpetrator of the crime.

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    Mute Shanti
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    Jan 28th 2014, 10:46 PM

    Congratulations Louise, it’s a good thing to see justice finally served.

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    Mute Peter Richardson
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    Jan 28th 2014, 11:53 PM

    The legislature is impotent and performs poorly. The Executive abuses its power and it practically unaccountable to the legislature.

    Sadly, the Judiciary is performing very poorly. It seems to favour the defence of the State even when the State has failed to protect vulnerable people.

    The country has badly lost its way. It needs to rediscover a conscience and to look at doing what is right, not what it thinks that it can gay away with.

    Ms. O’Keefe is true hero.

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    Mute Catherine Mill
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    Jan 28th 2014, 11:21 PM

    I asked a barrister once on this matter and she said ” do not be stupid, we do not take ourselves to court”

    Same applies to children abused in corporate care, ordered by the court,with Gardai passing the cases back to the HSE- to investigate themselves???

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