A judge has concluded that the State has misinterpreted a ruling by the European Court of Human Rights (ECHR) and in doing so has denied victims of child sexual abuse access to a redress scheme to which they are entitled.
In a decision that will be welcomed by survivors, Judge Iarfhlaith O'Neill has ruled that the State’s interpretation represents "a fundamental unfairness to applicants" and involves "an inherent inversion of logic", because of its insistence that survivors of sex abuse in primary schools need to prove that there was a complaint made to authorities about their abuser before their abuse took place.
In a ruling directly related to the cases of 13 applicants who were turned down for compensation from the State, the judge has concluded that all 13 are entitled to a payment from the scheme.
The decision will have implications for up to 350 survivors of historic sexual abuse that took place in primary schools here.
Four years ago the Minister for Education introduced a scheme to compensate victims of so called "day school" abuse.
It followed a ruling by the ECHR in the case of Cork woman Louise O'Keeffe, which found that the State bore some responsibility for the abuse she suffered at the hands of her former school principal Leo Hickey, and that the State should compensate her.
However, the State scheme established as a result of the O'Keeffe ruling insisted that applicants must prove that a prior complaint had been received by the authorities about their abuser.
Survivors and lawyers representing them argued that this was a misinterpretation of the European Court ruling, and that it placed an impossible barrier in the way of applicants.
Figures revealed by RTÉ News earlier this year showed that out of 50 applicants to the scheme no applicant has been successful, and that all of the cases refused have been declined on the grounds of a failure to show evidence of a prior complaint.
In what is a long-awaited adjudication upon the scheme Judge O'Neill has sided with the applicants.
He said that the State’s insistence on a "prior complaint" is "inconsistent with the core reasoning of the judgment of the court" and "impedes" its operation.
Judge O’Neill was appointed to oversee appeals related to the scheme.
More than a year ago he told the Department of Education that he needed to examine whether the "prior complaint" condition was compatible with the European Court's ruling.
Today, in a decision sent to lawyers acting for survivors, he states that he has "no hesitation in concluding that judgment of the ECHR does not expressly, or by any permissible or possible implication, contain such reasoning".
In a lengthy examination of the court ruling, Judge O'Neill states that the core findings of the European Court was that there was no mechanism for the reporting of child sexual abuse in national schools.
He goes on to say that "consequently there was no systematic recording of such complaints by the State.
"In so far as these records still exist they are in the possession of the denominational institutions who managed the schools and are not available to the State''.
Judge O'Neill said that the ECHR ruling found that the State had an inherent obligation to take reasonably available measures to protect children in national schools from the risk of sexual abuse.
He said he is "quite satisfied" that the European Court judgment established a liability on the part of the State based solely on its failure to have minimum mechanisms for the detection and reporting of child sexual abuse.
Judge O’Neill also said that absence of a State controlled mechanism must of itself have deterred such complaints from being made in the first place.
It is "inherently illogical for the State to demand the very evidence, which is not there or cannot be recovered because of the very failure of the State", Judge O’Neill said.
The judge also expressed the view that had "detecting and reporting measures by and to a State controlled body been in place .... as a matter of probability the prevailing culture of impunity which permitted these crimes to occur, could not have existed or survived and inevitably, except in rare cases, the harm would have been avoided".
The ruling has direct implications for survivors whose applications to the State redress scheme have been turned down.
But it also may pave the way for a further up to 350 survivors of historic day school sexual abuse to take cases against the state to the High Court.
This evening, Minister for Education and Skills Joe McHugh said he wanted to express abhorrence of sexual abuse and sympathy for those who have suffered. He also acknowledged the trauma that is faced by survivors of child sexual abuse.
The minister said he hoped that the decision of the Independent Assessor may help to bring a measure of closure to some of the survivors.
He said a total of 19 applications to the ex gratia Scheme were assessed by Judge O'Neill.
Thirteen applicants whose application for a payment was refused by the State Claims Agency on the sole grounds that they failed to furnish evidence of a "Prior Complaint" are each entitled to a payment from the scheme.
The State Claims Agency has been asked to make these payments an immediate priority.
However, six applicants whose applications were refused as they did not meet the eligibility criteria for the ex-gratia scheme in relation to discontinued litigation, are not entitled to a payment from the scheme.
Ms O'Keeffe has called for the full implementation of the judge's determination.
Speaking to RTÉ News she called on the state to implement it "in its whole and not just in a narrow view".
Ms O'Keeffe also called on the Taoiseach and the Minister for Education to apologise tomorrow in the Dáil for the abuse suffered in the past by children in national schools, and for the State's delay in, as she put it, owning up to and acting on the responsibility that was theirs.
Solicitor James MacGuill, who represents a number of survivors directly affected, said the judge's determination made it very clear that the State was wrong from the very beginning to insist on a 'prior complaint'.
While welcoming the judge's decision he said it was "too little too late".
Mr MacGuill criticised the fact that Judge O'Neill had to "come to the rescue of applicants" because the minister had not.
Dr Conor O'Mahony, Director of the Child Law Clinic at UCC, who worked with survivors of school abuse, welcomed Judge O’Neill’s decision, and said: "Today’s decision confirms what we have argued ever since the details of the scheme were first announced, namely that the requirement to prove prior complaint was impossible to fulfill and incompatible with the judgment in the Louise O’Keeffe case."
Dr O'Mahony added: "Abuse survivors have suffered enough for long enough, and it is long past time that the State met its obligations towards them under international human rights law."
The Irish Human Rights and Equality Commission has also welcomed the decision.
It is one of a number of bodies that had argued that the "prior complaint" requirement was an unduly narrow interpretation of the European court ruling.
In a statement it said the need for Government to address these findings without further delay was heightened by the fact that many survivors of abuse, are advancing in age and have been seeking not only compensation but also an acknowledgement of the wrong done to them since their childhood.
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, stated: "Louise O'Keeffe’s long fight for justice should have finally paved the way to an effective remedy for survivors of child abuse in Irish schools, but instead the State’s narrow interpretation of that ruling has served only to block, deny and frustrate victims.
The commission said it hoped that Judge O'Neill's decision would now lead the Government to immediately put in place a remedy that complies with the O'Keeffe judgment and ensures an effective remedy to survivors of child abuse in Irish Schools."