Prof O’Mahony, who is also director of the child law clinic at UCC, told RTÉ radio’s Morning Ireland that since the original O’Keeffe ruling seven years ago, the Department of Education had gone to “considerable lengths” to try to limit the number of people who would be eligible for compensation in various ways, primarily through the prior complaints condition, “rejecting every single application that was made to it.”
The O’Keeffe ruling saw Cork woman Louise O’Keeffe win a landmark legal challenge against the Irish State with the European Court of Human Rights, ruling that the Government failed to meet its obligation to protect her from the sexual abuse she suffered while a pupil in national school.
Prof O’Mahony said a revised compensation scheme announced on Wednesday seemed “unfortunately” to be a continuation “of this pattern of trying to place obstacles in the way of people who would be deserving of compensation for sexual abuse suffered in national schools and to really make it more difficult for them to receive that redress.”
There were a number of features of the revised version of the scheme that would have that effect, he said.
“One is the requirement that somebody would have to have taken court proceedings before they are eligible to apply to the scheme, that has no basis on the O’Keefe decision and it really serves no purpose other than to make it more difficult,” he said.
“So anyone who was waiting to see what happened with the ex gratia scheme and didn’t initiate court proceedings is now being told that they are not eligible to apply.”
The Minister’s comments on Wednesday that it would still be possible for complainants to go to the courts rather than to the ex gratia scheme was “really quite a disingenuous position,” he said, “because all cases which have been taken to the courts have failed, you have to go to the European Court of Human Rights essentially to get any recourse which takes many years because the Irish courts have rejected every single case which has been taken in relation to this issue.”
A second problem, added Prof O’Mahony, was the statute of limitations which imposed time limits around how long people have to take their court proceedings.
“It appears there will be a strict application of the statute of limitations and it’s likely that many applications will be told ‘you took your court proceedings too late and therefore you’re not eligible’ and again that doesn’t make allowances for the fact that many people who maybe delayed in taking their cases, delayed because of all the uncertainty caused by the opening of the scheme and the subsequent closure and review and reopening and so on.”
Prof O’Mahony said that he thought the main reason for imposing the requirements that people would have had to take prior litigation was “simply to make it more difficult and to limit the number of people who might potentially receive compensation from the scheme. There doesn’t appear to be any other rational basis for imposing that.”
People experienced sexual abuse in a primary school system in which the child protection framework was entirely inadequate
In principle, the scheme should be designed around meeting the terms of the O’Keefe judgement, he said. “There’s nothing in the O’Keeffe judgement that makes any reference to the idea that only people who would previously have taken litigation were entitled to compensation.
“The entitlement to compensation arises from the fact that people experienced sexual abuse in a primary school system in which the child protection framework was entirely inadequate,” he said.
“That’s where the entitlement to abuse redress — that comes in the same way in respect of somebody who had taken prior court proceedings or somebody who hadn’t — if two people were abused in the same school, by the same abuser, and one of them took court proceedings and the other didn’t then there’s no basis whatsoever for saying that one of those people is entitled to receive compensation from the scheme while the other isn’t.”
Of the various aspects of the review announced on Wednesday, he welcomed the clarification that legal costs will be covered. “The real concern is that of the 360 known applicants who are expected to apply, is that on the criteria announced yesterday you may see a number of those refused.”