The State’s Duty to Protect Children from Abuse: Justice in Strasbourg in O’Keeffe v. Ireland
This guest post was written by Professor Ursula Kilkelly. Professor Kilkelly is Director of the Child Law Clinic at the Faculty of Law of University College Cork, Ireland (see more info below the post, at *).
On 28 January 2014, the Grand Chamber of the European Court of Human Rights handed down its judgment in the case of Louise O’Keeffe and Ireland. The judgment brought to a conclusion a 15 year-long legal battle whereby the applicant – who was abused by her teacher when attending primary school in Ireland – sought vindication of her rights against the state. It also resulted in a ground breaking judgment of the European Court which established beyond doubt that the state has a positive duty to take steps to protect children from abuse under Article 3 of the European Convention on Human Rights (ECHR).
Louise O’Keeffe attended a small school in Ireland during the 1970s. In 1971, a parent of another child at the school complained to the school Manager that LH, the school principal, had abused her child. That complaint was not reported to the police, to the Department of Education or to any other state authority. It was not acted upon by the Manager. From mid-1973, Louise O’Keeffe was subjected to approximately 20 sexual assaults by LH during music lessons. During this time, she and her parents were unaware of the allegations made about LH but this changed in September 1973 when, following a meeting between the parents chaired by the School Manager, LH went on sick leave and then resigned from his post. He subsequently took up a position in another school. Between 1969 and 1973, the Inspector assigned to the region visited the school on six occasions during which time no complaint was made to him. The applicant, having suppressed the abuse, was contacted by the police in 1995 when they were investigating a complaint made by another child in respect of abuse by LH. As a result, LH was charged with 386 criminal offences of sexual abuse involving some 21 former pupils of the school over a period of 10 years. In 1998, he pleaded guilty to 21 sample charges and was sentenced to imprisonment. In October 1998, the applicant received an award of damages from the Criminal injuries Compensation Tribunal. In 1998, she instituted civil proceedings against LH, the Minister for Education and Ireland for damages for the abuse suffered. Judgment was made against LH in default. Her action against the state was unsuccessful on the grounds that the state was not vicariously liable for the actions of LH given the relationship between the state and the denominational management of national schools in Ireland. Her action for breach of constitutional rights was unsuccessful on similar grounds, ie that the state was not directly liable for the provision of education (Article 42.4 provides that the State ‘shall provide for free primary education’) , the day-to-day management of schools being a matter for the schools themselves.
Before the European Court of Human Rights, the applicant argued that her treatment by the state had breached her rights under Articles 3 and 13 of the ECHR. The state in response denied liability on the grounds that LH was not a state employee (he was employed by the school manager) ,that primary education was not a solely national enterprise in the Irish context and that the applicant was not required by law to attend a national school as the law allowed other options. It denied, also, that the state could have been aware of a risk of sexual abuse of children by teachers in the 1970s. In any event, it argued that domestic law contained effective protective mechanisms commensurate with any risks perceived at the time.
According to the Court, the obligation under Article 1 of the ECHR to secure Convention rights to everyone taken in conjunction with Article 3 requires states to take measures designed to ensure that individuals are not subjected to inhuman and degrading treatment. Although not every risk of ill-treatment could entail a Convention requirement to take measures to prevent that risk from materialising, the Court held that the ‘required measures should, at least, provide effective protection in particular of children… and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’ (para 144). According to the Court, this positive obligation of protection assumes particular importance in the context of an ‘important public service such as primary education, school authorities being obliged to protect the health and well-being of pupils and in particular of young children who are especially vulnerable and are under the exclusive control of those authorities’ (para 145). Taken together, this required the adoption as necessary of special measures and safeguards, an obligation which applied in 1973 on the grounds of relevant international instruments and case-law of the European Court of Human Rights from that period (para 147). According to the Court’s case-law, the state cannot absolve itself from the duty to protect children in primary schools by delegating those duties to private bodies or persons. Rather than questioning the (Irish) model of non-state management of education, the question was whether the framework of laws – notably mechanisms for detecting and reporting abuse – provided effective protection for children attending a national school against the risk of sexual abuse of which risk it could be said that the authorities had or ought to have had knowledge in 1973. Considering the facts of the situation in place at the time that the abuse occurred, the Court noted first, that the Minister for Education did not have any direct or day-to-day management or control of the national schools in a model that was largely unique to Ireland. In parallel, the Court held that the state was aware of the level of sexual crime against children through the enactment of criminal laws on the subject and the evidence of a steady level of prosecutions in this area prior to the 1970s. Against this backdrop, the state should have been aware of the risks of relinquishing control of the education of children to non-state actors and should have addressed those risks by adopting commensurate measures and safeguards (para 162). These should, at a minimum have included effective mechanisms for the detection and reporting of any ill-treatment to a state-controlled body, such procedures being fundamental inter alia to the fulfilment of the state’s positive protective obligation. Instead, the mechanisms on which the state relied (a weak inspection system which focused on the quality of teaching rather than the treatment of the children) did not provide any effective protective connection between the state and primary school children and their parents (para 165). The extent of the failure of this system was evident from the fact that there were over 400 incidents of abuse concerning LH since the mid-1960s which effective protection mechanisms might reasonable have been expected to avoid. As a result, the Court found that the state had failed in its positive obligation to protect the present applicant from sexual abuse to which she was subjected in 1973, in violation of her rights under Article 3.
As noted above, the judgment of the Grand Chamber ended the applicant’s 15 year–long struggle to hold the state accountable for the abuse that she suffered in primary school. At the heart of the case – and indeed the judgment – was the Convention principle that regardless of how education is organised or who has day-to-day responsibility for schools, the State has a positive duty to protect children from ill-treatment that occurs there. In this respect, the judgment builds neatly on the Court’s earlier jurisprudence in Costello-Roberts v United Kingdom, where the Court made clear that the state had responsibility for the treatment of a child in a private school in England. Moreover, it drew clearly from a number of cases – including Z and Others v United Kingdom – which established that this included a positive obligation under Article 3 of the ECHR to take reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. It was clear from the judgment that the European Court did not accept Ireland’s argument that its educational system was acceptably different from other jurisdictions – under the Convention, there could be no abdication of responsibility for the protection of children in schools. Against these legal principles, then, the applicant’s challenge was to establish, on the facts of the case, that the state could reasonably have been expected to know that child abuse was a risk in 1973. There were two elements to this point – the first was that in general, including through its criminalisation of sexual abuse and the apparent use of these provisions, that the state knew that sexual abuse was a risk. The second was that in particular, a complaint about LH had been made, but not acted upon in 1971, thereby showing the ineffective nature of the mechanisms (such that they were) set up to monitor education. These approaches combined provided sufficient weight to the view that the State could legitimately be held to account for failing to take the necessary steps to protect the applicant from the abuse she suffered while attending school.
From a legal perspective, this judgment merely adds to the existing case–law concerning children’s right to protection from harm and the state’s explicit duty to take effective measures to protect children from harm the risk of which was known or ought to been known to the state. Its additional value is at least two-fold. First, it makes clear that states cannot rely on historical ignorance of abuse to deny a victim’s claim in the modern day. This may well have implications that go well beyond this judgment. More personally, however, the judgment establishes that notwithstanding the seemingly impossible challenges of lengthy and expensive legal challenges, victims should not give up for they might someday get justice.
* Professor Ursula Kilkelly directs the Child Law Clinic with Dr Conor O’Mahony at the Faculty of Law, University College Cork. The Clinic provided pro bono, student-led legal research and strategic support to the lawyers litigating the case of Louise O’Keeffe. See more information here.