The Ombudsman for Children and the State’s human rights watchdog have urged the Government to greatly expand the redress scheme for children abused in Irish schools.
A retired High Court judge is currently conducting an independent assessment of the scheme, which to date has ordered pay-outs in just seven cases.
One aspect being examined by Judge Iarfhlaith O’Neill is whether the terms of the scheme are too narrow and if it is in breach of the 2014 O’Keeffe Judgment from the European Court of Human Eights (ECHR).
Judge O’Neill is expected to issue his final report within the next two weeks, according to the Department of Education.
Depending on his report, the scheme could be expanded to include more than 350 victims of abuse who would each receive an ex-gratia payment of up to €84,000.
The Irish Times has learned Judge O'Neill has received submissions from the Ombudsman for Children and the Irish Human Rights and Equality Commission (IHREC) that the scheme should be widened significantly.
They join the University College Cork Child Law Clinic in arguing for the scheme’s expansion. As it stands, abuse victims are only eligible for redress if there had been a prior complaint made against their abusers.
In other words, victims are not eligible for compensation if they were an abuser’s first victim or if the abuser’s other victims had declined to come forward for whatever reason.
To date the Government has resisted calls to expand the scheme despite losing a Dáil motion on the issue last month. In the wake of losing the vote, which had cross-party Opposition support, the Government said it would wait on the results of Judge O’Neill’s assessment of the scheme.
The redress scheme was set up following a ruling by the ECHR in Strasbourg that the State bore vicarious liability for the abuse of Louise O'Keeffe at the hands of her primary school principal in the 1970s.
Last year, Minister for Education Richard Bruton appointed Judge O'Neill to review the 19 cases that were deemed ineligible for redress by the State Claims Agency (SCA). At least a dozen of these victims have also lodged court proceedings against the SCA's decision.
In March, to the surprise of many observers, Judge O’Neill told the Government he intends to examine the general terms of the redress scheme and not just the individual decisions.
The Government has since made a submission at the judge’s request on why it believes payouts can be narrowed to cases involving prior complaints.
Abuse survivors will also be paying close attention to a new legal case lodged with the ECHR by John Allen, who was abused at the age of nine in North Monastery Primary School in Cork.
If the ECHR accept the case, Mr Allen, who is being advised by Dr Conor O’Mahony of the UCC Child Law Clinic, will argue the narrow terms of the redress scheme means the State has failed to abide by the terms of the O’Keeffe judgment.
Dr O’Mahony said the prior complaint criteria is an “almost impossible burden” for victims to overcome.
"For one thing because people didn't complain, especially as children," he told The Irish Times.
“And in the small number of cases where a complaint was made they will generally be no record of it because of a guidance note by the department directing those complaints away from the department.
“Any records that might exist are held by the religious orders. And the SCA hasn’t been given the power to compel the orders to hand them over.”
Campaigners also argue the State did have prior knowledge of wide-spread abuse of children in schools. For example as early as 1931 the Carrigan Report warned of system-wide child abuse.