A retired High Court judge is investigating whether the Department of Education is correctly implementing a European Court of Human Rights judgment in relation to the sexual abuse of children in Irish schools.
In a letter to the Department of Education, seen by RTÉ News, Mr Justice Iarfhlaith O’Neill said he believes the step is necessary in order for him to discharge his function.
Last November, Mr Justice O’Neill was appointed as the independent assessor of a redress scheme established as a result of the 2014 ruling.
The judge has requested a submission from the Department of Education on the matter.
In 2014, the European Court of Human Rights ruled that the State was liable for abuse suffered in primary school by Cork woman Louise O’Keeffe.
The ruling had implications for an estimated 360 people who were also abused in Irish schools.
Ms O’Keeffe had taken her case to Europe after the Irish courts rejected her argument that the State had culpability.
The State established a redress scheme as a result of the EHRC ruling.
However, it has stipulated that a claimant must be able to demonstrate that they were abused by a school employee in respect of whom a prior complaint of sexual abuse had already been made to the school authorities.
This stipulation has been widely criticised by survivors, lawyers, and human rights groups who argue that it is a misinterpretation of the ECHR ruling.
In his letter, Mr Justice O’Neill said that since his appointment as independent assessor he has received 19 applications for persons whose claims were declined by the State Claims Agency.
His role is to review decisions made by the agency in declining payments.
Mr Justice O’Neill said in 14 of the 19 cases, the claimants have challenged the rejection of their claims on the ground that the obligation on a claimant to furnish evidence of a prior complaint is inconsistent with the judgement of the ECHR.
He said: "In order for me to discharge my function ... it appears to be necessary for me to reach a determination on that issue."
He said in the letter that he will be inquiring into whether the imposition of this condition "is consistent with and a correct implementation of the judgement of the ECHR in the case of Louise O’Keeffe v Ireland".
The judge has asked for the submission to be delivered by this Friday, 30 March.
The State is required to give periodic updates to the Council of Europe on its implementation of the ruling.
In its latest January update, the State said that there is "no strict interpretation as to what constitutes a prior complaint".
It said while it does not require "a strict evidential standard", the State must be satisfied "on the balance of probabilities that there was a prior complaint".
Although an estimated 360 people are potentially affected by the ECHR ruling, just seven settlements have been made so far.
Six of these settlements have been accepted. However in the seventh case, the claimant had died. In all seven cases evidence of a prior complaint was established.
News that Mr Justice O’Neill is inquiring into the State’s interpretation of the ruling will be welcomed by survivors of abuse in schools.
They and their legal representatives have argued that the State is misinterpreting the ECHR ruling in insisting upon a prior complaint.
Last November, Fianna Fáil leader Micheál Martin accused the Government of "stonewalling" survivors with a too narrow interpretation that was preventing hundreds of survivors from accessing redress.
Meeting survivors who had travelled to the Dáil to highlight their case, Mr Martin said he believed the requirement of a prior complaint was "bogus" and did not stand up to analysis.
However, the Department of Education has said its legal advice is that the ECHR found that the State had liability only where there was a prior complaint against the abuser in question, and where the case was not statute barred.