O’Keeffe v. Ireland
European Court of Human Rights (ECtHR)
28 January 2014
Article 19: Protection from abuse and neglect
Other International Provisions:
European Convention on Human Rights (ECHR), Articles 3 (torture or inhuman or degrading treatment), 8 (privacy), 13 (effective domestic remedy), 14 (discrimination) and 41 (just satisfaction)
European Convention on Human Rights, Protocol No. 1, Article 2: Right to education
International Covenant on Civil and Political Rights (ICCPR), Article 24: Child’s right to protection without discrimination
International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 10 (special measures of protection and assistance on behalf of children) and 12 (provision for the healthy development of children)
An Irish national, Louise O’Keeffe (“applicant”), was sexually abused at the age of nine by a teacher in a Roman Catholic-owned school in 1973. Parents complained to the school and the teacher resigned and moved to another school where he continued to teach until his retirement. The abuse finally came to the attention of national authorities in 1996 when the perpetrator was charged with 386 criminal offences related to the abuse of 21 former pupils. He later pleaded guilty to 21 charges and was sentenced to imprisonment.
O’Keeffe successfully brought a civil claim against the perpetrator in the Irish courts, but the State denied that it was vicariously liable for the abuse, a position upheld by the Irish Supreme Court. O’Keeffe then brought the case to the European Court of Human Rights, claiming that the State had violated the ECHR by failing to protect her from sexual abuse in the school and by not having an effective remedy against the State in that regard.
Issue and resolution:
Child sexual abuse. The Court found that the State had failed its obligation to take reasonable steps to prevent the abuse of the applicant and had failed to provide an effective remedy for the abuse.
Article 3 of the ECHR – torture or inhuman or degrading treatment (substantive aspect)
The Court reasoned that given the fundamental nature of the rights guaranteed under Article 3 and the particularly vulnerable nature of children, it is the government’s inherent obligation to ensure their protection from ill-treatment, especially in the primary education context, through the adoption of special measures and safeguards. The Irish State was aware of sexual abuse of children by adults through its prosecution of such crimes at a significant rate. Nevertheless, it continued to entrust the management of the primary education of the vast majority of Irish children to non-state actors, without putting in place any mechanism of effective State control against the risk of such abuse occurring. Potential complainants were directed away from State authorities and towards the non-state denominational school managers. As such, the Irish State failed to meet its positive obligation, in violation of Article 3.
Article 3 of the ECHR – torture or inhuman or degrading treatment (procedural aspect)
Article 3 requires the authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals. The investigation should be conducted independently and promptly, and the victim should be able to participate effectively. The Court ruled that there was no violation of the procedural obligations under Article 3 since an effective official investigation into the ill-treatment of the applicant had been carried out in 1995 once the complaint was made to the police.
Article 13 of the ECHR – effective domestic remedy
The Court was not persuaded that any of the remedies against the State for failure to protect the applicant from sexual abuse were shown to be effective. For example, the Supreme Court had rejected the State’s vicarious liability for the acts of the teacher. Furthermore, a claim against the State in direct negligence would require a duty of care on the part of the State to the applicant, but since there was no State control in schools, no such duty of care could exist. As such, the Court concluded that the applicant did not have an remedy available to her regarding her Article 3 complaints, in violation of Article 13.
Article 41 of the ECHR – just satisfaction
According to precedent, if the Court finds a violation of an important right under the ECHR which has led to significant pain and suffering, it may award a sum in non-pecuniary damages. With regard to pecuniary loss, there must be a clear and causal connection between the damage claimed and the violation established. Having established that an important right was violated, and that a causal connection between the damage and the violation existed, and taking into account previous awards given to the plaintiff as well as uncertainties about any future payments she would receive from the teacher, the court awarded the applicant 30,000 euros for her pecuniary and non-pecuniary loss, plus tax. Lastly, the Court also awarded the applicant 85,000 euros for the costs and expenses of the proceedings.
Excerpts citing CRC and other relevant human rights instruments:
“The preface of the International Convention on the Rights of the Child 1989 recalls, inter alia, the various child protection provisions of the 1924 and 1959 Declarations, the UDHR and the ICCPR. Article 19 provides that the State shall protect the child from maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims.”
“The Geneva Declaration of the Rights of the Child was adopted by the League of Nations in 1924 and underlined, as a preamble to its five protective principles, that mankind owed to the child “the best that it had to give”. By unanimous vote in 1959, the General Assembly of the United Nations adopted its Declaration of the Rights of the Child extending the 1924 declaration. This 1959 Declaration is prefaced by the general principle that a child, by reason of his physical and mental immaturity, needed special safeguards and care. Principle No. 2 provides that a child shall enjoy special protection and shall be given opportunities and facilities to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity, the best interests of the child being always paramount. Principle 8 provides that the child shall in all circumstances be among the first to receive protection and relief and Principle 9 states that the child shall be protected against all forms of neglect, cruelty and exploitation.”
“The Universal Declaration of Human Rights 1948 (“UDHR”) contains two Articles which expressly refer to children – Article 25 on special care and assistance and Article 26 on the right to free elementary education – as well as the catalogue of human rights which apply to all human beings including the right not to be subjected to cruel, inhuman or degrading treatment.”
“Article 24 of the International Covenant on Civil and Political Rights (“ICCPR”) stipulates that “every child shall have, without any discrimination … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Article 2 of the International Covenant on Economic, Social and Cultural Rights (“ICESC”) required States to take steps, including legislating, to progressively realise the rights guaranteed by the Covenant. Article 10 of the ICESC consistently stipulated that special measures of protection and assistance should be taken on behalf of the young. Article 12 addresses the right of all to “enjoyment of the highest attainable standard of physical and mental health,” and incorporates a specific provision under which State parties are obliged to take steps for the provision of healthy development of children. Both Covenants were opened for signature in 1966 and they were signed and ratified by Ireland in 1973 and 1989, respectively.”
Immediately after the judgment was handed down, Irish Prime Minister Enda Kenny gave an apology to O’Keeffe. In August 2014, the Irish government submitted an Action Plan to the Council of Europe setting out the measures that have been taken since the ECtHR decision.
Holding the State liable looks set to open doors for other victims of sexual abuse in Ireland and the rest of Europe. State liability will also avoid some of the difficulties involved in holding church officials responsible, a process which is complicated in cases of historic abuse in which the person responsible may have died or no longer hold the role. Bishops are not considered to succeed to the role in the same way as the State in Ireland and so cannot be held responsible in an official capacity for the actions of their predecessors.
The Court noted that the complaints under Article 8 (right to private life) and Article 2 of Protocol No. 1 (right to education), whether alone or in conjunction with Article 14 of the ECHR, concerned the same facts and issues evoked under Article 3, and as such there was no need for further examination.
For more information on the issue of child sexual abuse and religious institutions, including a selection of case law, please see CRIN’s campaign ‘End sexual violence in religious institutions‘.
CRIN believes this decision is consistent with the CRC. The CRC requires children to be protected from all forms of physical or mental violence, injury or abuse while in the care of any person who has the care of the child (Article 19). This includes protection from sexual abuse (Articles 19 and 34) and torture and cruel, inhuman or degrading treatment (Article 37(a)), and covers abuse perpetrated by institutional personnel, including non-governmental personnel (General Comment No. 13). States must ensure that effective remedies are available to children who have been abused, including compensation and access to redress mechanisms and appeal or independent complaint mechanisms.
O’Keeffe v. Ireland, App. No. 35810/09 (ECtHR, 28 January 2014)
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.