Failure to protect from sexual abuse constitutes violation of freedom from inhuman and degrading treatment

O'Keeffe v Ireland (European Court of Human Rights, Grand Chamber, Application No 35810/09, 28 January 2014) 

Summary

The Grand Chamber of the European Court of Human Rights found that the State of Ireland failed in its obligation to protect the applicant from sexual abuse she suffered as a child in an Irish National School and therefore violated her rights under article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This case is not concerned with the responsibility of the perpetrator, but rather with the responsibility of the State, and whether the State ought to have been aware of the risk of sexual abuse of minors in Irish National Schools at the relevant time and whether adequate legislative protection was in place.

Facts

The case examined the responsibility of the State for the sexual abuse of a nine year old schoolgirl by a teacher (LH) in an Irish National School in 1973. Irish National Schools were State funded and attended by the majority of Irish children, privately managed by religious patronage. The applicant supressed the sexual abuse until the launch of a criminal investigation into a complaint against LH in 1996, where the applicant was contacted by police after complaints against LH were lodged by another former pupil.

In 1998 the applicant commenced a civil action against LH, the Minister, Ireland and the Attorney General, seeking damages for personal injuries suffered as a result of sexual abuse by LH.

The applicant took the matter to the European Court of Human Rights, primarily alleging under the Convention that the primary school education system in Ireland failed to protect her from sexual abuse by a teacher in 1973 and that she did not have an effective domestic remedy to address this failure.

The previous decisions

In 1998 the applicant applied to the Criminal Injuries Compensation Tribunal for compensation and was awarded EUR 53,962.24.

The applicant also commenced proceedings in the High Court in 1998, arguing:

• negligence by the State arising out of the failure to implement measures at the school to prevent ongoing abuse by LH;
• vicarious liability of the Minister, Ireland and the Attorney General for the acts of LH on the basis that the relationship between LH and the State was one of employment; and
• the State's responsibility as the educational provider under article 42 of the Constitution.

LH did not defend the civil action and in 2006 the High Court ordered EUR 305,104 in damages against LH. In 2004 the High Court dismissed the negligence claim against the State. In 2006 the High Court further held that the State was not vicariously liable for the sexual assaults by LH and dismissed her constitutional claim.

The applicant appealed to the Irish Supreme Court in 2006, challenging the vicarious liability finding. By majority judgment, the Court dismissed the appeal, finding that the system of Irish primary schooling had to be understood in the context of the history of schooling in Ireland. The State funded the system; however, the church managed the system and therefore the State could not be held vicariously liable for the acts of LH.

The applicant appealed to the European Court of Human Rights on the basis that the State failed to protect her from sexual abuse by a teacher in her school and that she did not have an effective remedy against the State. The applicant relied upon article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention. She furthermore argued that article 8 (right to respect for private life) and article 2 of Protocol No 1 (right to education) and article 14 (prohibition of discrimination) had been violated.

Decision

The Court considered each of the relevant articles and concluded as follows:

(a) Article 3 (inhuman and degrading treatment)

Article 3 of the Convention reads "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The applicant argued that the State failed to implement an adequate framework of protection for children against sexual abuse. The Court considered whether the State's laws provided sufficient protection for National School children against the risk of sexual abuse, of which risk it could be said that the authorities had, or ought to have had, knowledge of in 1973. The Court examined this point by viewing any responsibility of the State from the point of view of facts and standards of 1973, the year that the relevant facts of the case took place, disregarding the present day knowledge of the risk of sexual abuse of minors in schools.

The Court recognised that the primary education model in Ireland is unique to Ireland, with the State providing for the curriculum, licensing and other form of education while the National Schools themselves provided for the management of the education.

The Court also observed that "…it is an inherent obligation of government to ensure their protection from ill-treatment, especially in a primary context, through the adoption, as necessary, of special measures and safeguards" and that this obligation was applicable in 1973. The Court noted that the State had a positive obligation under article 3 to minors in primary schools and cannot negate its obligations by delegation.

The Court further determined that the State must have been aware of sexual abuse of children through prosecution rates prior to the 1970s, citing reports issued pre-1970s that revealed prosecution rates in Ireland for sexual offences against children.

The Court concluded that the mechanisms in place did not provide sufficient protection to school children at the time of the sexual abuse occurring and therefore the State failed to fulfil its positive obligation to protect the applicant from sexual abuse in 1973 whilst attending a National School and there was a violation of the applicant's rights under article 3 of the Convention.

The applicant additionally sought to argue that there was a procedural breach of article 3. The Court determined that the State satisfied the procedural obligations by investigating the complaint once opened in 1995 and therefore found there was no violation of procedural breach of article 3.

The Court also considered that additional complaints under article 8 and article 2 of Protocol No 1 did not establish any issue separate to that already examined under article 3. Therefore the Court determined it was not necessary to examine the issues under these articles separately.

(b) Article 13 (recognition at a national level of the failure to protect from abuse) (in conjunction with article 3)

Article 13 of the Convention provides "Everyone whose rights and freedoms…are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".

The applicant argued that she did not have an effective remedy against the State in relation to the failure of the State to protect her from sexual abuse. The Government argued that there were effective remedies available.

The Court considered that any civil remedies against State and non-State actors were not effective in this case given that the applicant was entitled to a remedy establishing liability of the State. Therefore the Court held that there was a violation of article 13.

(c) Article 41 (just satisfaction)

Article 41 of the Convention provides "If the Court finds that there has been a violation of the Convention...and if the internal law…allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

The Court determined that a total award of EUR 30,000 for pecuniary and non-pecuniary loss would be awarded plus EUR 85,000 for costs and expenses. This is in addition to the previous High Court award and the award made by the CICT.

Commentary

Under section 32(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) judgments of international courts may be considered when interpreting a statutory provision. Therefore this decision may affect the courts' interpretation of section 10 (protection from torture, inhuman or degrading treatment) and section 17 (protection of families and children).

Currently, all Australian states have mandatory reporting requirements in place for alleged sexual abuse in schools. In Victoria, these mandatory reporting requirements, introduced in the 1990s, apply to teachers and are outlined in the Children, Youth and Families Act 2005 (Vic). The reporting requirements may be triggered differently in each state, but generally the requirement is that there is a "belief on reasonable grounds" that a child has suffered or is likely to suffer significant harm as a result of sexual abuse. These requirements may be considered by a Victorian court not to be subject to the same inadequacies as the framework to protect children discussed in this case.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140235

Laura Molck is a lawyer at Allens.