O'Keeffe Action Inadvisable

It is difficult to come to terms with the reality of child sexual abuse, much less the devastating effect it has on its victims. When Louise O'Keeffe was in primary school she was abused by the one person who should have been there to protect her, her school principal Leo Hickey. In 1998, some 25 years after the abuse was committed, Mr. Hickey pleaded guilty to 21 sample counts of child sexual abuse. Shortly afterwards Ms. O'Keefe sued her former teacher and the State for damages. She won (in default) against the teacher but her claim was contested by the State.

Late last year the Supreme Court dismissed her claim that the State was liable for the actions of the principal of the primary school she attended. National (Primary) Schools are run by their boards of management which in turn are responsible to the Schools' patrons. Most of the State's national schools are Catholic and their patrons are normally Catholic bishops. Under arrangements, which date back some 180 years, the school is largely (and these days almost entirely) financed by the State which otherwise has no role in the day-to-day operations of the school. It is admittedly a rather strange system that most of the State's schools are owned and operated by the Church but funded by the State, but there it is.

Decisions over staff at a National School are taken by its board of management and are not imputable to the State which is not liable in tort for decision taken by the board of management. A Catholic National School cannot, in any way, be considered as an agent or a part of the State. Moreover, merely giving money to an organisation does not make the State vicariously liable for any action or omission that organisation did or failed to do.

In last Wednesday's Irish Times (June 24th) it was reported that Ms. O'Keeffe plans to take her case to the European Court of Human Rights in Strasbourg. It is quite common for people who've lost before the Supreme Court to rest their hopes of final vindication before the Strasbourg court. Unfortunately, this is not a guarantee of success. The European Convention on Human Right now enjoys some status in Irish law and its provisions are regularly pleaded before the courts (typically in conjunction with the Constitution). It is notable, however, that the Convention wasn't pleaded before the Supreme Court in this instance.

In the Times article Ms. O'Keeffe's solicitor referred to a decision of the Strasbourg court in Costello-Roberts v. the United Kingdom. On first glance that case looks promising. In it, the Court found that Britain could not "absolve itself from responsibility by delegating its obligations to private bodies." To conclude, however, that Ms. O'Keeffe could succeed based on this point is to confuse two different kinds of legal duties, namely:

1. the legal duty of States to ensure that ensure that human rights are respected within their territory, and
   
   
2. the legal duty to compensate individuals as a result of injuries caused to them by the State, its servants and agents (in layman's terminology, people employed by the State and people acting on behalf of the State).

In Costello-Roberts — a corporal punishment case — the applicant failed in a civil action against the school because what had been done to him was neither illegal nor tortuous, as the school could avail of the (subsequently repealed) defence of reasonable chastisement. His human rights were infringed, not because his was barred from suing the State (an issue which did not arise), but because it wasn't possible to sue the people who were actually responsible.

In contrast, it was not doubted that sexual abuse was (and is) illegal in Ireland or that the Ms. O'Keefe's teacher could be criminally prosecuted and held tortuously liable for his actions (which he was). It is also clear from the Supreme Court that Ms. O'Keefe could have sued the school's board of management and/or its patron, the Bishop of Cork and Ross. (Although any action now would, in all probability, be statute-barred.)

When the authorities were finally notified, action was taken. Had the authorities been told about allegations of abuse at the time, and done nothing, things would be different. But this does not appear to have been suggested in this case.

In the circumstances I don't believe the State would lose before the European Court of Human Rights, in respect of then unreported instance of child sexual abuse. Unfortunately, all the empathy in the world will not change the legal realities of Louise O'Keeffe's case.