Order settles dispute with abuse inquiry

A legal dispute between the Christian Brothers Congregation and the Commission to Inquire into Child Abuse has been resolved.

The resolution came as a result of the Commission's recent decision that it won't proceed with "naming and shaming" individual perpetrators of abuse unless those were convicted by the courts, the Supreme Court heard today.

The action has cost the Commission more than €1 million.

As a result of the June 16th decision, announced by the new chairman of the Commission, Mr Justice Sean Ryan, the substance of the Congregation's challenge to proposed procedures of the Commission's Investigation Committee is now moot (unnecessary) and won't be proceeding, Ms Mary Irvine SC, for the Congregation, said.

In stating it would not name individuals, the Commission had unilaterally moved the goalposts and rendered moot the main point of the Congregation's appeal against aspects of the High Court's decision on the Congregation's challenge, counsel indicated. Mr Frank Clarke SC, for the Commission, said he broadly accepted what Ms Irvine said.

The legal question in the appeal had become moot due to external factors. The process which led to the Commission's ruling on June 16th against "naming and shaming" had been in train for some time, he added.

At Ms Irvine's request, Ms Justice McGuinness, sitting with Mr Justice Hardiman and Mr Justice Geoghegan, granted, on consent, an order setting aside the Congregation's appeal against aspects of a High Court decision last January on the Congregation's challenge to the Investigation Committee's proposed procedures.

Cross-appeals by the Commission and the State against other aspects of the same High Court decision were also set aside on consent. On the application of Ms Irvine, which was not opposed by the Commission, the Supreme Court also made an order granting the Congregation its costs of the Supreme Court appeal.

That costs order is against the Commission but not the State defendants, who are the Minister for Education and Science, Ireland and the Attorney General. No orders for costs were made in relation to the cross-appeals. Last January, the Congregation was also awarded its costs, estimated at up to one million euro, of its High Court challenge.

Following the various costs orders, the Commission is now facing a legal bill of more than €1 million. The Supreme Court also affirmed orders made by Mr Justice Abbott on the Congregation's challenge.

The case arose after the Investigation Commission on October 18th 2002 decided it would investigate allegations of abuse made against deceased, untraceable and infirm members of the Congregation.

The Committee also indicated, as a matter of general principle, that it would be in favour of making findings of abuse against individuals and that managers of the institutions where those individuals pereptrated that abuse would also be regarded as culpable. In his High Court decision, Mr Justice Abbott granted two declarations to the Congregation.

He declared that the Investigation Committee was acting in excess of the provisions of the Commission to Inquire into Child Abuse Act 2000 in not providing an interpretation of the terms of that Act relating to the corroboration and testing of evidence of witnesses. He also declared that a requirement in the October 18th 2002 ruling of the Committee, and the Committee's Framework Document, was in excess of the provisions of the 2000 Act.

In the case of enquiries in relation to allegations of abuse against deceased and incapacitated persons, the Committee had required the respondent to provide a written statement as a precondition to the right to cross-examine witnesses.

Although the Congregation had failed in its legal bid to prevent the Investigation Committee making findings of abuse against deceased, elderly, infirm or untraceable members of the Order, Mr Justice Abbott said the Congregation, through its proceedings and its securing of declarations in relation to how the Investigation Committee should do its work, had effected "a sea change" in the way the Committee would proceed. The Commission, initially chaired by Ms Justice Laffoy, who resigned earlier this year, was set up on a statutory basis in April 2000 under the Child Abuse Act 2000 (the 2000 Act).

Ms Justice Laffoy has since been replaced as chairperson by Mr Justice Ryan. An estimated 700 allegations of abuse are pending against surviving, deceased and untraceable members of the Congregation.