FIFTH SECTION

DECISION

Application no . 35810/09 Louise O ’ KEEFFE against Ireland

The European Court of Human Rights (Fifth Section), sitting on 26 June 2012 as a Chamber composed of:

Dean Spielmann , President, Mark Villiger , Karel Jungwiert , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , judges, Peter Charleton , ad hoc judge, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 16 June 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Louise O ’ Kee f fe, is an Irish national born in 1964 and she lives in Cork , Ireland . She is represented before the Court by E. J. Cantillon and Co , a firm of solicitors practising in Cork .

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties , may be summarised as follows.

1. Background facts

3 . The applicant attended Dunderrow National School from 1968. The school was owned, through trustees, by the Catholic Bishop Lucey of the Diocese of Cork and Ross: he was its Patron. The Manager was the local parish priest ( Archdeacon Stritch , “ S ” ). Since the latter was infirm, a priest (“O”) was the de facto Manager. Dunderrow National School was one of the four state-funded National Schools in the applicant ’ s parish.

4 . In 1971 a parent of a child complained to O that the Principal of the school (“LH”) had sexually abused her child. Sometime in 1973 other complaints of abuse by LH were made. Following a meeting of parents chaired by O, LH went on sick leave. In September 1973 he resigned from his post. In January 1974 O wrote to the then Department of Education and Science (“the Department”) on behalf of S stating that LH had resigned and naming his replacement. The Supreme Court later noted that it did not appear that the Department was informed of the complaints against LH and that it would appear that no complaint was made to the police at that point. LH took up a teaching position in another National School where he taught until his retirement in 1995 .

5 . The applicant and her parents were unaware of the complaints against LH. From January to mid-1973 the applicant was subjected to a number of sexual assaults by LH during music lessons by him in his classroom. Later evidence in the High Court indicated that, in September 1973 , other parents brought to the applicant ’ s parent ’ s attention certain ‘ difficult ies ’ concerning LH . In a brief conversation, the applicant ’ s mother asked her whether LH had touched her . The applicant responded that LH had put his hand down her knickers and the a pplicant did not recall the conversation or the matter going any further .

6 . The Inspector visited Dunderrow National School on six occasions from September 1969 to October 1973. He observed the work of LH and considered it satisfactory. He was not told of any complaint against LH.

7 . The applicant suppressed the sexual abuse. While she had significant psychological difficulties, she did not associate those with the abuse. In 1996 she was contacted by the police who were investigating a complaint made in 1995 by a former pupil of Dunderrow National School against LH. The applicant made a statement to the police in January 1997 and was referred for counselling. During the investigation a number of other pupils made statements. LH was charged with 386 criminal offences of sexual abuse involving some 21 former pupils of the school during a period of about 10 years. In 1998 he pleaded guilty to 21 sample charges and was sentenced to imprisonment. His licence to teach was withdrawn by the Minister for Education (the Minister”) under Rule 108 of the National School Rules 1965.

8 . In or around June 1998, and as a consequence of the evidence of other victims during the criminal trial and subsequent medical treatment, the applicant realised the connection between her psychological problems and the abuse by LH and understood the extent of those problems.

2. Criminal Injuries Compensation Tribunal (“CICT”)

9 . In October 1998 the applicant applied to the CICT for compensation . An initial award (EUR 44,814.14) was made by a single judge. The applicant appealed to a CICT panel. She submits that, during the appeal, the CICT gave her the option of continuing her appeal and a finding that her CICT application would be rejected as out of time or that she accept the initial offer of the CICT with some additional expenses (EUR 53,962.24 in total). The applicant considered she had to accept and she was awarded on an ex gratia basis this total amount. Since the State is not a party to CICT proceedings, it became aware of this award later before the High Court.

3 Civil action for damages (No. 1998/10555P)

(a) High Court

10 . On 29 September 1998 the applicant instituted a civil action against LH, the Minister for Education and Science (“the Minister”) as well as against Ireland and the Attorney General, claiming damages for personal injuries suffered as a result of assault and battery including sexual abuse in 1973 by LH whilst attending Dunderrow National School . Her claim against the latter three defendants (“the State Defendants”) was threefold : (a) negligence by the State arising out of the failure of the State Defendants in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to protect from, and to cease, the systematic abuse by LH since 1962; (b) vicarious liability of the State D efendants for the acts of LH since, inter alia , the true relationship between them and the State was one of employment; and (c) liability given the constitutional responsibility of the State Defendants in the provision of primary education pursuant to Article 42 of the Constitution and the measures put in place to discharge that responsibility.

11 . Since LH did not file a defence, on 8 November 1999 the applicant obtained judgment in default against him. On 24 October 2006 the High Court assessed and awarded damages payable by LH in the sum of 305,104 euros (“EUR”): EUR 200,000.00 in general damages; EUR 50,000.00 in aggravated damages; EUR 50,000.00 in exemplary damages; and EUR 5,104.00 in special damages. The applicant was required to take enforcement proceedings in which LH claimed he had insufficient means. The District Court ordered him to pay EUR 400/month in discharge of the award. The first monthly payment was received in November 2007. She had also registered a judgment mortgage against his family home.

12 . The High Court hearing against the State Defendants began on 2 March 2004. On 5 March 2004, while the applicant was presenting her evidence, the High Court judge, in response to the applicant ’ s complaint about the absence of a State system for adverting to and addressing sexual abuse in National Schools, pressed Counsel for the applicant as follows:

“What evidence do I have, or what should I have deduce[d] from the evidence that has been given that either the system in operation was a bad system, and I will come back to that, or that there was an alternative system that should have been applied, and what that alternative system might have been.”

When the applicant ’ s case concluded, the State Defendants applied for a direction non-suiting the applicant on the basis that no prima facie case had been made out. By order of 9 March 2004 the High Court found that a case in negligence had not been made out against the State Defendants (it did not distinguish between the two bases for the negligence claim of the applicant). The trial continued on the questions of vicarious and constitutional liability, finishing on 12 March 2004.

13 . On 20 January 2006 the High Court delivered judgment. It found that the action was not statute bared. It also concluded that the State was not vicariously liable for the sexual assaults perpetrated by LH given the relationship between the State and the church as regards National Schools:

“The selection and appointment of any person as a teacher was a prerogative of the manager as was such a teacher ’ s appointment as principal. It was the function of the Department ... (and hence the Minister) to pay the salary of such teachers and to ensure that they had the necessary qualifications. The Department also exercised a supervisory role in the overseeing of teacher ’ s activities in the school. Mr . [...] in his evidence, stated in general terms “the manager was the direct governor of the school” and I accept this as being the situation.”

Although Counsel for the applicant had orally suggested that the State should be vicariously liable also for the inaction of O, the High Court did not address this point not included in the original statement of claim.

14 . As regards the applicant ’ s third claim, the High Court found that no action lay for a breach of a constitutional right where existing laws (in this case, tort) protected that right.

15 . The costs of the proceedings against the State Defendants were awarded against the applicant.

(b) Supreme Court

16 . In 2006 the applicant appealed to the Supreme Court.

17 . The Notice of Appeal appealed against the finding on vicarious liability and in that context referred to two matters: the absence of reasons for the interim ruling of 9 March 2004 and the High Court judgment ’ s failure to rule on the vicarious liability for the inaction of O. Judge Hardiman described the appeal as limited to the State ’ s vicarious liability for the acts of LH and O, although he commented in his judgment on the other two initial claims of the applicant (direct negligence and the constitutional claim). Judge Fennelly considered that the appeal concerned only vicariously liability for the acts of LH, although he also dismissed later in his judgment vicarious liability for O.

18 . By a ma jo rity judgment ( Hardiman and Fennelly JJ, with whom Murray CJ and Denham J concurred and Geoghegan J dissenting) of 19 December 2008, the Supreme Court dismissed the appeal.

19 . Hardiman J described in detail the legal status of National Schools. While the arrangements for national school education might “seem rather odd today”, they had to be understood in the context of Irish history in the early 19th century. Following denominational conflict and the later concession of Catholic emancipation in 1829, the dissenting churches and the Roman Catholic Church wished to ensure that children of their denominations be educated in schools controlled by the denomination and not by the State or the Established (Anglican) Church. Those churches were “remarkably successful” in achieving this aim: from the very beginning of the Irish system of the national education (encapsulated in the “Stanley letter” of 1831 ), the Government authority paid for the system of national education “but did not manage it or administer it at the point of delivery”, the latter function was left to the local Manager who was, in Catholic schools, invariably a cleric appointed by the local bishop who was the Patron of the school.

20 . Hardiman J went on to describe as “remarkable” the fact that, whilst during the 19th century Europe firmer distinctions were being drawn between Church and State and Church influence in the provision of public services (including education) was ebbing, in Ireland the position of the Church became stronger and more entrenched. He adopted the evidence of one expert witness (in the history of education in Ireland ) who, in describing the position after the inception of the Irish Free State in 1922, noted that the Catholic Managers in this “managerial” system:

“were very clearly articulate and very absolutely ... precise in how they interpreted what the situation was for national schools in the new Ireland ... It had to be Catholic Schools under Catholic management, Catholic teachers, Catholic children.”

21 . That witness had emphasised the “striking” continuity of tradition following the establishment of the Department in 1924. That expert then described the attitude of the Roman Catholic Church in the 1950s in response to a teachers ’ trade union wish to establish local committees to control maintenance and repair of school buildings (although not otherwise to interfere with the authority of the Manager). The Catholic Church had responded that there could be “ no interference whatever with the inherited tradition of managerial rights of schooling”. Even if the trade union had spoken only of building maintenance, that proposal would, the Cardinal considered, be the thin edge of the wedge because, in due course, the request might be to interfere with “other aspects of the Manager ’ s authority vis-à-vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years.”

22 . Between the 1924 and 1950s referred to above, the Constitution had been enacted, which Hardiman J considered reflected this managerial structure (Article 42 of the Constitution). Article 42.2 disposed of the applicant ’ s contention that she was obliged to attend Dunderrow National School . The reference in Article 42.4 to the obligation of the State to “provide for” free primary education reflected a largely State funded, but entirely clerically administered, system of education. The pleadings in the case suggested that there were approximately 3000 National Schools in Ireland: most were under the control of Roman Catholic Patrons and Managers but others (few) were under the control of religious or religiously appointed Managers of different denominations and some (even fewer) were under the control of non-denominational groups. He noted that, in recent times and after more than a century and a half, the provision of education was belatedly and at least partially placed on a statutory basis (the Education Act 1998) but:

“At all times prior to that, and in particular at the time to which the [applicant ’ s] complaint relates, the role of the State, and of the Minister, in relation to the educational system (such as it was) was administered by and under the Rules for national schools and a great body of circular letters issued by the Department. In this, the authorities of the modern State were carrying on the traditions established in the 19th century under the Commissioners for National Education.”

23 . Hardiman J also made a finding on the evidence that the act of sexually abusing a pupil was the negation of what LH was employed to do but in 1973 “ it was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school ” .

24 . As regards the principles of vicarious liability, Hardiman J concluded that, having regard to the “ Salmond test” (from Salmond and Heuston on Torts , 20 th Edition) for vicarious liability and to the above-described arrangements for the control and management of National Schools, the State Defendants were not liable to the applicant for the actionable wrongs committed against her. He clarified that O was :

“ the nominee of the Patron, that is of a power other than the Minister and he did not inform the Minister of any difficulties with, or complaints about, [LH] or of his resignation and appointment to teach elsewhere until they were faits accomplis . He was the agent not of the Minister, but of the Catholic Church, the power in whose interest the Minister was displaced from the management of the school. ”

25 . Hardiman J commented on two of the applicant ’ s original claims which had “not been proceeded with”.

26 . As to the claim of negligence by the State, he commented that:

“... this is a claim which could more appropriately be made against the Manager. It was he who had the power to put in place appropriate measures and procedures governing the running of the school. The Minister can hardly be responsible for a failure to “cease” a course of action of whose existence he was quite unaware.

27 . As to the claim about the responsibility of the State in the provision of primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility , Hardiman J noted:

“I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Judge Kenny pointed out in Crowley v. Ireland [[1980] I.R. 102], deprived of the control of education by the interposing of the Patron and the Manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.

I do not read the provisions of Article 42.4 as requiring more than that the Minister shall “endeavour to supplement and give reasonable aid to private and corporate educational initiative”, to “provide for free primary education”. In the Canadian case of Blackwater v. Plint [2005] 3 S.C.C. 58, the much stronger statutory terms of a statute authorising the Minister “to establish, operate and maintain schools for Indian children” was found not to support “the inference of a mandatory non-delegable duty”. In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the Patron and the Manager.”

28 . Hardiman J concluded by underlining that nothing in the judgment could be interpreted as suggesting liability on the part of the Church and, in any event, it was quite impossible to do so because those authorities had not been heard by the Court because the applicant had not sued them.

29 . Fennelly J also outlined the legal status of National Schools in some detail. The “ Stanley letter” was the “foundation document of the national school system” and he outlined the distinctive Church and State roles in national education prior to independence. He accepted the expert ’ s evidence that it was not a state system of schools (other than the few “model” schools) but rather it was a “state-supported system”. He referred to the determination of religious denominations “to preserve and guard their independence and their own distinct religious education” so that National Schools developed into a predominantly denominational system in terms of Managers, pupils and teachers. A school was owned by a Patron (in the case of Catholic schools usually the bishop) who appointed the Manager, the latter of whom had day-to-day responsibility. The division of power was very clear: on the one hand, the Board of Commissioners laid down regulations for control of the curriculum and such matters as textbooks and teacher training and, on the other hand, “the appointment and dismissal of teachers was the prerogative of the Manager, who was almost always a clergyman and hence responsible for the “moral probity” of the school.” Neither independence nor the Constitution changed the structure so that, in the case of Catholic schools, the Managers, teachers and children were Catholic, a system consistent with the constitutional obligation on the State in Article 42 to “provide for” free primary education

30 . In addition, Fennelly J explained in some detail the inspection of schools which he considered as a “crucially important part of the system of State oversight and maintenance of standards” and he referred to the detailed description of this inspection process in Geoghegan J ’ s dissenting judgment (paragraphs 3 5 -3 6 below).

31 . Moreover, the Rules for National Schools reflected the system of allocation of responsibility which has existed since 1831. Even if, in modern times the State played a more intrusive role, responsibility for day-to-day management (in particular, the hiring and firing of teachers) remained with the Manager. While the State controlled the recognition of a teacher ’ s qualifications, the contract of employment was between the Manager and the teacher so that the Manager could employ and dismiss a teacher without the sanction of the Minister.

32 . Accordingly, Fennelly J concluded that the State Defendants were not vicariously liable for the acts of LH or, for the same reasons, for the failure of O to report the 1971 complaint to the State. LH was not employed by the State Defendants but he was, in law, the employee of the Manager, S. While LH had to have the qualifications laid down by the Minister and to observe the provisions of the Rules for National Schools and while the State had disciplinary powers in relation to him pursuant to those Rules, he was not engaged by the State and the State did not have the power to dismiss him:

“The scheme of the Rules and the consistent history of national schools is that the day-to-day running of the schools is in the hands of the manager. The inspection regime does not alter that. The department inspectors do not have power to direct teachers in the carrying out of their duties. ... On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national schools. I do not, of course, exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability.”

33 . Referring back to the reference in the Notice of Appeal to the State ’ s liability for the failure of O to report the 1971 complaint , Judge Fennelly concluded his judgment “ For the same reason, insofar as it is necessary to say so, there can be no liability for the failure of [O] to report the 1971 complaint [O] was not the employee of the second-named defendant. ”

34 . Geoghegan J dissented. He noted that, for all practical purposes, most of the primary education in Ireland took the form of a jo int enterprise of Church and State and he considered that the relationship between the Church and State as regards National Schools (given, notably, the role of School Inspectors) was such that there was sufficient connection between the State and the creation of the risk to render the State liable. He examined in some detail the evidence given by, and concerning the role of, School Inspectors noting, inter alia , that if an allegation of sexual assault by a teacher on a N ational S chool pupil was considered well-founded by an inquiry set up by the Department, it could lead to withdrawal of recognition or to a police investigation and, if the police found the complaint justified , there would be withdrawal of recognition. There was a ma jo r difference between dismissal by the Manager and withdrawal of recognition by the Department : a dismissal by a Manager allowed the teacher to obtain a teaching post elsewhere whereas withdrawal of recognition meant that a teacher ’ s licence was withdrawn so that that person could no longer teach .

35 . Finally, Geoghegan J commented specifically on the applicant ’ s failure to take proceedings against the Church. It appeared that the main reason was a practical one of having to sue the personal representatives of the Manager (S), acting Manager (O) or of others such as the Patron (the Bishop), all of whom were deceased. Geoghegan J considered whether, in that context, the applicant was to blame for delaying bringing her proceedings and whether she had “a just and practical remedy” in being forced to sue one or more of those personal representatives. However, the legal representative might be dead so it would require a court application for a special grant de bonis non and it was not clear where the assets to meet such a judgment would be. He was not entirely convinced that the fact that the then Patron was not a corporation sole should necessarily preclude an action against the current Bishop and execution against the diocesan assets: there had been many cases in the past where actions had been brought against a diocese concerning events that occurred under a former Bishop and where the current Bishop did not raise the matter either as a matter of honour or because of insurance cover or both. However, none of that arose in the applicant ’ s case.

36 . By judgment of 9 May 2009 the Supreme Court vacated the High Court order for costs against the applicant (it was not disputed that this was an important test case on which numerous follow-up cases depended) and determined that each party had to bear its own costs of the civil action concerning the State Defendants.

37 . The applicant was legally represented throughout the civil proceedings, although she did not have legal aid.

B. Relevant domestic law and practice

1. Article 42 of the Constitution 1937

38 . This Article reads as follows:

“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3(1) The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

(2) The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

39 . The constitutional duty of the State to “provide for” free primary education in Article 42(4) created a corresponding right on a child so entitled to receive primary education ( Crowley v. Ireland [1980] IR 102). The words “provide for” mean that the State does not itself have to educate children but rather it is obliged to ensure that appropriate education is provided to them. The State is not prohibited from managing schools itself: there are a small number of such schools under State patronage.

2. Relevant legislation

40 . The Children Act 1908 governed child protection at the relevant time. However, it contemplated State intervention in the form of taking a child into care so that it was used in cases of inter-familial abuse.

41 . Section 4 of the School Attendance Act 1926 required parents to cause their children to attend a national or other suitable school, unless there was a reasonable excuse for not so doing such excuses being, inter alia , that the child was receiving suitable elementary education in some other manner, that there was no national school accessible to which the parent did not object on religious grounds or that the child was prevented from attending by some other sufficient cause. Section 5 provided that the Minister could certify schools to be suitable and revoke any such certificate and accorded to the Minister certain powers of inquiry, investigation and inspection. This Act was repealed in 2000.

42 . The Education Act 1998 was the first comprehensive legislation on education since the foundation of the State. It placed on a statutory basis for the first time, the State funded/privately managed nature of primary education. It made no fundamental structural changes in that regard.

3. Rules for National Schools (“the Rules”) and relevant Ministerial Circulars

43 . Promulgated by the Department in 1965, the Rules recognise the triangular nature of the relationship between the Minister, teachers and Managers of primary schools. The Rules are neither primary nor secondary legislation and they apply insofar as they have not been amended by legislation or by Ministerial Circular.

(a) Managers and Boards of Management

44 . Rule 15 governed the role and functions of Managers. Rule 15 provided that the Manager was charged with “direct government of the school, the appointment of the teachers, subject to the Minister ’ s approval, their removal ... ”. The Manager was required to be “a clergyman or other suitable person or body of persons” and to ensure compliance with rules.

45 . Most primary schools now have Boards of Management. In 1976 a Ministerial circular 16/76 set out approved arrangements and the 1998 Act put the Boards on a statutory basis. Section 14 of that Act provide s that it is the duty of the Patron to appoint , where practicable and in accordance with the “principle of partnership”, a Board the composition of which is agreed between the Minister and the education partners and, further , that the Board would be a body corporate with perpetual succession and therefore with the power to sue and be sued in its corporate name.

(b) Complaints

46 . Rule 108 provides:

“Where the Minister is satisfied that a teacher:

A. Has conducted himself improperly or has failed or refused to comply with the Rules or to discharge his duties under the School Attendance Act 1926, or

B. Has failed or collaborated with another teacher in falsifying the records of a National School , or ...

The teacher is dealt with as the Minister may determine, Penal action, including prosecution, withdrawal of recognition in the capacity in which the teacher is serving, or in any capacity as a teacher, withdrawal or reduction of salary, may be taken when in the opinion of the Minister such action appears warranted.

Before action as set forth in section (1) of this rule is taken the teacher is afforded an opportunity of forwarding any statement he may desire to submit in his defence.

Salary in whole or in part may, however, be withheld at the discretion of the Minister pending full investigation of the circumstances of the case.”

47 . A Guidance Note of 6 May 1970 outlined the practice as regards complaints against teachers. A complaint was to be brought to the Manager ’ s attention, the Manager would take a statement from the teacher and this material was sent to the Chief Inspector who would decide if an inquiry was necessary. An inquiry leading to relevant findings against the teacher could lead to his recognition being removed and/or the matter could be referred to the police.

(c Inspectors

48 . Rule 161 of the Rules provides for inspections by Inspectors and Rule 162 for appeals from their Reports. Inspectors were to supply to the Minister the information required for the effective administration of the system. They could call to the attention of the Manager any rules they considered were being infringed, the general condition of the school or other matters requiring the Manager ’ s attention. An Inspector would make annual visits as well as other incidental visits. The Inspectors work was also guided by Ministerial Circular of which Circular no. 16/65 was in force in 1973.

4 Relevant statistics

49 . The 1965 Investment in Education Report gave a breakdown of the 4821 National Schools catering for 482,620 pupils in 1962/63. Of those schools, 91% were Catholic run and catered for 97.6 % of the pupils and 9% were Protestant run and catered for 2.4% of the pupils. While home schooling was possible, the ma jo rity of children attended National Schools and most private “non-aided” schools were located in Dublin .

50 . The reports of the Department for 1972-1973 referred to 3776 National Schools and the reports for 1972-1973 to 3688 National Schools. The vast ma jo rity were under Catholic patronage. A 2011 Report of the Department notes that approximately 96% of primary schools were under religious patronage (including 89.65 % under Catholic patronage).

5. Criminal Injuries Compensation Tribunal (“CICT”)

51 . An injured victim of crime can apply for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted. The scheme is administered by the CICT.

52 . The time-limit for a victim to make a claim is three months although a reasonable explanation can allow the CICT to extend the time-limit. Legal representation is not required and the CICT will not pay any legal expenses. The initial decision is taken without a hearing and by a single member and can be appealed. The appeal decision, taken by the full tribunal, is final. Compensation covers expenses and losses suffered as a direct result of a violent crime (out-of-pocket expenses and bills less social welfare payments, salary or wages received while on sick leave) and there is no compensation for non-pecuniary damages.

6. Related public inquiries and reports on child abuse

53 . In November 1991 the Department introduced its own guidelines for primary schools (Circular Circular 16/91 ) which were updated in 2001 (“ Child Protection - Guidelines and Procedures ”) and in 2006 (“ Child P rotection Guidelines and Procedures for Primary Schools ”).

54 . In 1999 the first comprehensive framework for child protection was adopted by the State (“ Children First: National Guidelines for the Protection and Welfare of Children ”). These guidelines we re to assist in the identification and reporting of child abuse and to improve professional practice s in agencies/ organisations provid ing services for children and families . The code has been updated since then, most recently in 2011.

COMPLAINTS

55 . The applicant complained that the system failed to protect her from abuse by the Principal of her National School in 1973 and that she did not have a remedy against the State in that regard. She invoked Article 3 (alone and in conjunction with Article 13 ), Article 8 , Article 2 of Protocol No. 1 as well as these latter Articles in conjunction with Article 14 of the Convention. She also complained under Articles 6 and 13 of the Convention about the length of her civil proceedings and about the lack of an effective domestic remedy in that respect.

THE LAW

A. The complaints under Articles 6 alone and in conjunction with Article 13 of the Convention

56 . The applicant complained under Articles 6 and 13 about the length of her civil proceedings and that she had no effective domestic remedy .

57 . By letter dated 13 January 2012 the Government offered to settle those complaints on the basis of an ex gratia sum of EUR 12,000 for pecuniary and non-pecuniary damages as well as EUR 3500 (inclusive of VAT) in respect of costs and expenses. By letters dated 8 and 12 February 2012 the applicant accepted the Government ’ s offer .

58 . The Court takes note of the friendly settlement reached between the parties as regards these complaints. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and it finds no reasons to justify a continued examination of these complaints (Article 37 § 1 in fine of the Convention).

59 . In view of the above, it is appropriate to strike out these complaints .

B. The remaining complaints

1. The applicant ’ s submissions

60 . The applicant maintained that she exhausted domestic remedies because she was entitled to choose the domestic remedy against the State which she considered most tenable (vicarious liability) in which to raise the substance of her Convention complaint. Her case was a lead case domestically and led to a ma jo rity final judgment. That she was ultimately unsuccessful and that the remedy was thereby demonstrated to be inadequate did not mean that it was unreasonable to have attempted it in the first place or that she should thereafter have exhausted other possible remedies. Accordingly, she was entitled to introduce her application to this Court after the Supreme Court judgment in her case and she was not required, as the Government maintained, to do so within six-months of the non-suit order of 9 March 2004. Without prejudice to this primary position, she added as follows.

As to the failure to appeal the non-suit ruling of 9 March 2004 and while no reasons were given by the High Court, she was non-suited because her evidence did not demonstrate a prima facie case of negligence. However, this reversed the onus of proof (requiring her to prove the inadequacy of the State system) and evidential findings of fact are rarely overturned on appeal. The cases cited by the Government did not concern an appeal against a non-suit except Schuit v Mylotte ([2012] IESDC 56) the result of which was not foreseeable in 2004. In any event, the Supreme Court rejected the negligence claim.

As to the failure to sue the Patron or Manager, a Bishop was not a corporation with perpetual succession. Even if Bishops had not defended some recent actions on this basis, the present Bishop had denied liability in response to the applicant ’ s pre-action letter. Counsel had also advised against suing the successors of the then Patron, Manager or acting Manager. In any event, the applicant was entitled to a determination of State liability and to compensation specific to that liability . As to whether the Manager and de facto Manager were included in the vicarious liability claim, the applicant had so pleaded during the trial and on appeal and Judges Hardiman and Fennelly had rejected this claim. The criminal conviction of LH did not address the State ’ s failure to prevent the abuse in the first place.

61 . The applicant denied that the awards by the CICT or against LH took away her victim status. The CICT did not acknowledge wrong by the State, the award was ex gratia , it was significantly less than an award in a civil action and the remedy before the CICT was not judicial. Judicial review of the CICT would not be effective: it is a rare remedy (approximately 5 cases since 1982); the scope of judicial review is too narrow ( Meadows -v- Minister for Justice Equality and Law Reform , [2010] IESC 3) so that judicial review of the level of an CICT award stood no chance of success; and she risked a heavy costs order against her. The delay to which the panel of the CICT referred was the delay since her injury in 1973. In any event, after 3 oral hearings during 2½ half years before the CICT panel and given the options the CICT panel gave to her, she felt obliged to accept the slightly increased offer of the CICT.

She had done all she could to recover the award against LH. She had registered a judgment mortgage on his family home but that affected his interests only and not his wife ’ s and did not allow for an order for sale. There remained no prospect of the award against LH being paid.

62 . On the merits of her substantive Article 3 complaint, the applicant submitted that the State failed to protect her from the abuse given the structure of its primary education system. Alternatively, she complains that the de facto Manager was an agent or collaborator of the State who failed to take adequate steps when abuse by LH was first reported in 1971 which would have avoided her later abuse. She also invoke d the procedural obligations in Article 3 to investigate and provide an appropriate judicial response to a stateable case of ill-treatment , she noting, inter alia , the unreported complaint in 1971 and the delay before the criminal investigation of LH and his conviction.

She underlined the fundamental nature of the protection afforded by Article 3 and that her case concerned the State ’ s positive obligation to put in place an effective framework of protection from treatment of children in breach of Article 3 in primary education and, in particular, to protect a vulnerable group from abuse in a public function context (primary education) from persons in a position of power over them ( Van der Mussele v. Belgium , 23 November 1983, Series A no. 70 ; and Costello-Roberts v. the United Kingdom , 25 March 1993, Series A no. 247 ‑ C ) . Moreover, the applicant argued that the State either had or should have had knowledge of abuse of children in National Schools (referring to, int e r alia , the Report of the Commission to Inquire into Child Abuse , “ Ryan Report ”, of May 2009) but it failed to react thereto by putting in place relevant safety mechanisms. The State could not absolve itself from responsibility by delegating, let alone by handing over completely, its education obligations to private bodies. Neither could it absolve itself by saying that the applicant had other educational options and, in any event, she did not: absent resources to home school/attend a private school, the obligatory nature of primary education rendered attendance at National Schools inevitable.

Far from there being an adequate framework of protection as the Government argued, there was an absence of State control. The legal source of such State involvement was unclear (based on a tangle of primary and secondary legislation, Ministerial and other circulars as well as the Rules, the extent to which the latter remain in force being unclear). There was no clear and binding requirement to monitor/report abuse or to address such reports effectively. The system of Inspectors was not designed, nor at all adequate, to protect from abuse. The inadequacy of the State system of protection was clearly established by, inter alia , the Ryan Report and by the facts of the present case. The applicant contrasts the State ’ s position in this case (where it is argued that there was a clear framework of protection by the State) and the State ’ s pleadings in her domestic action (where it distanced itself from any knowledge or role in school management).

63 . The applicant also complained under Article 8 that the primary education structure failed to protect her and, alternatively, that O was an agent of the State who failed to take relevant steps in 1971 when complaints were made. She also invoked Article 2 of Protocol No. 1 arguing that that Article was prominent in the Court ’ s mind when it found that the liability of the State could be engaged in relation to the conduct of a teacher in a private school. Articles 3 and 8, as well as Article 2 of Protocol No. 1, read together put a duty on the State to organise its educational system so as to ensure it met its obligation to protect children. She also complained under Article 14 in conjunction with the above-invoked Articles, pointing out that the State sought to avoid responsibility for abuse in National Schools whereas it had accepted same in relation to the abuse of children in residential institutions.

64 . Finally, she invoke d Article 13 in conjunction with Article 3 arguing that the Supreme Court effectively created an immunity for the State in respect of both its own failure to take preventative measures and in respect of the acts of State agents.

2 . The Government ’ s submissions

65 . The Government submitted that the applicant has failed to exhaust domestic remedies. While her key complaint w as that the State negligently failed to put in place a system which could have protected her from abuse, she did not appeal the non-suiting of this precise claim on 9 March 2004. The prima facie standard for non-suiting was a relatively low one. The trial judge so ruled not because the evidence was inadequate but because the applicant had adduced no evidence at all which could have amounted to a sustainable case of direct negligence. The appellant in Schuit v. Moylette ([2010] IESC 56) successfully appealed a non-suit on evidential grounds. Indeed, the applicant opened to this Court voluminous controversial material (investigations and reports about child abuse, expert reports, academic articles and historical research) in order to support her allegations of negligence which material was precisely the kind of material which required domestic examination before submission to this Court. The non-suit could also have been appealed on the basis of an absence of reasons or that the trial court failed to address each aspect of the negligence complaint. If the non-suit order was clearly not appealable, the application should have been introduced within six months of 9 March 2004. It was not tenable to suggest that exhausting a remedy on one issue (vicarious liability) amounted to exhaustion on another (negligence).

66 . Moreover, she failed to sue the Patron and Manager of the school. That there was potential in such an action was demonstrated by the Report by Commission of Investigation into Catholic Archdiocese of Dublin of July 2009 (“Murphy Report”). That Report noted that EUR 7 million had been paid to 77 victims of abuse by predecessors of the current Archbishop of the Archdiocese of Dublin which indicated that Bishops accept liability for abuse by predecessors. Recent British jurisprudence ( J.G.E. v . the English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2001] EWHC 2871) also went in this direction. Finally, her vicarious liability claim omitted the acts/inaction of the M anager or of the de facto Manager .

67 . Moreover, the awards by the CICT and by the High Court against LH provided real and substantial redress to the applicant for her injuries which meant that she could no longer claim to be a victim within the meaning of Article 34 of the Convention ( inter alia , Caraher v. the United Kingdom ( dec .), no. 24520/94 , ECHR 2000 ‑ I ) . She could possibly have been entitled to further compensation by the CICT were it not for her failure to comply with the time-limit to appeal the initial award. She also failed to apply to judicially review the CICT ruling. The higher award by the civil courts could be explained by the fact that more information was before those courts. The Government did not know what enforcement procedure (including judgment mortgages) was or could have been employed to recover the damages award against LH. LH had also been convicted and imprisoned.

68 . The Government also argued that the application was manifestly ill-founded and/or did not disclose a violation of the Convention.

69 . The Government endorsed the Supreme Court ’ s description of the development of the Irish system of primary education adding that it was a system which existed when the Irish State was created in 1922 and which was maintained by Article 42 of the Irish Constitution 1937. That Article meant that, while children had the right to an education, the State did not itself have to provide it but rather it was obliged to ensure that appropriate education was made available. This situation suited the ma jo rity and minority denominations, it reflected the will of the Irish people and it was not the function of this Court to recast the relationships which formed the basis of a significant portion of the Irish primary school system. They underlined that the 1926 Act did not oblige a child to attend a National School as the law allowed other schooling options.

70 . As regards the substantive failure to protect complaint under Article 3, the Government argued that the State could not be held responsible for the acts of LH. The Van der Mussele and Costello-Roberts cases were distinguishable because the actions of LH were clearly the negation, and outside the scope of, education so that they could not engage the State ’ s responsibility. Accordingly, State responsibility for criminal offences unrelated to securing a Convention right was limited to an operational obligation ( Osman v. the United Kingdom , 28 October 1998, Reports 1998 ‑ VIII ) which was dependent on the State ’ s knowledge. However, the applicant provided no evidence that the State knew or ought reasonably to have known in 1973 of a real risk, in an ordinary primary day-school, of treatment contrary to Article 3. For detailed reasons outlined by the Government, the applicant ’ s reliance on prior public reports on abuse was misconceived and of limited relevance to the present case.

71 . Alternatively, the Government submitted that there had been no failure to fulfil a positive obligation to protect. While there was no specific regulation for reporting child abuse, there were sufficient safeguards in place. The conduct of LH was proscribed by the criminal law (he was later convicted and imprisoned) and by civil law (tort of assault) and criminal injuries compensation was available and awarded (CICT). There were mechanisms to deal with teachers who did not conduct themselves properly: Rule 108 of the 1965 Rules; the Guidance Note of 6 May 1970 ; and Inspectors whose role was, inter alia , to ensure the Rules were complied with (paragraph 4 9 above). Each Manager, teacher, Inspector and, indeed, parent had a role in protecting children and each could have made, but did not make, any complaint directly to an Inspector, the Minister or the police which would have led to relevant inquiries/investigations/prosecutions. However, none of these processes were used in the present case. Domestic law also contained effective deterrents to prevent abuse: offences in the criminal law, civil action for damages against LH/religious authorities, the CICT and the possibility of a teacher losing his teaching licence.

72 . As to Article 13 in conjunction with Article 3, the Government recalled LH ’ s conviction and imprisonment; the awards of damages against LH and by the CICT; as well as the availability of an action against the religious bodies and in negligence against the State, neither of which actions were pursued by the applicant.

73 . As to the procedural obligation of Article 3, the Government argued that sufficient procedures existed in 1973 but that no State actor was informed. Once the complaint was made, relevant investigations took place, LH was convicted, a CICT award was made, the applicant ’ s civil action against LH was successful and her civil action in negligence against the State failed on evidential grounds only.

74 . The Government denied there was a violation of Article 8 of the Convention on the same basis as under Article 3 of the Convention. In any event, it would be unnecessary separately to consider the matter under Article 8 of the Convention.

75 . Finally, the Government noted that the applicant ’ s discrimination allegation had been raised domestically and, in any event, there was no discriminatory difference in treatment between the compensation available to someone qualifying under the Residential Institutions Redress Act 2002 and that available to someone in the applicant ’ s position.

3. The Irish Human Rights Commission (“IHRC”)

76 . The IHRC was established by statute in 2000 to promote and protect the human rights of everyone in Ireland and, along with the Northern Ireland Human Rights Commission, it has its origins in the Good Friday Agreement of 1998.

77 . The IHRC referred to its report “ Religion and Education: A Human Rights Perspective ” of May 2011 in which it recommended the reform of the education system to ensure compliance with human rights standards in the delivery of public education.

78 . The IHRC pointed out that, while the courts had, in theory, endorsed the idea of fashioning remedies for alleged breaches of constitutional rights ( Byrne v. Ireland [1972] IR 241, p. 281; and Meskill v. Ireland [1973] IR 121), the same courts tended to avoid replacing existing statutory and common-law remedies with a separate constitutional remedial regime so that the constitutional courts relied on existing remedies such as tort. The case of W v. Ireland (no. 2) ([1999] 2IR 141) was the most relevant to the present where the courts found that the right to bodily integrity was protected by the law of tort. This was precisely what occurred in this case: to dispose of the constitutional claim against the State it was sufficient to direct the applicant to a remedy in tort for breach of her right s to bodily integrity / privacy .

However, the nature of the tortuous relationship (negligence/vicarious liability) defined the State ’ s obligations/liabilities rather than the possibly broader duty of the State to vindicate the rights of a child in the public education system . This, in turn , raise d the question of whether the private law remedy in tort was adequate to protect the substance of the a pplicant ’ s c onstitution al rights not least because the private law remedy focus s ed on the State ’ s conduct rather than on the applicant ’ s rights.

79 . The IHRC noted, inter alia , the positive obligations to prevent treatment contrary to Articles 3 and 8 including a more general duty to structure the primary educational system in such a way as to protect children, which obligations could not be avoided by delegating a public service function to a private body. In this context, the IHRC considered that a serious question arises as to whether the State maintained a sufficient level of control over publicly funded National Schools to ensure that Convention rights were upheld. The legal status of the Rules was unclear. The Rules governing Inspectors were also unclear as regards the Inspector ’ s role in any teacher conduct situation and, while the Rules addressed unsatisfactory work and “improper conduct” by teachers, they did not define this or indicate any process whatsoever for dealing with it. Since private/home schooling were not accessible to the vast ma jo rity of Irish parents, rendering obligatory primary education obligatory effectively required parents to send their children to National Schools failing which they risked criminal proceedings, fines and the possibility of children being taken into care. In sum, in a typical national school which most Irish children inevitably attended, school management had little guidance as to how to deal with allegations or suspicions of abuse, schools were under no duty to report such allegations to the Department or to the police, social services had limited powers to deal with any such allegations or suspicions and, finally, children and parents faced difficulties making any such complaints.

4. European Centre for Law and Justice (“ECLJ”)

80 . The ECLJ described itself as a Christian-inspired and international non governmental organisation dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special consultative status before the United Nations and has previously intervened as a third party in cases before this Court. The ECLJ focussed on the question of whether the State could be considered responsible for the abuse by LH of the applicant.

81 . The ECLJ noted that, since the creation of the education system, the role of the State therein was limited to financing it and controlling the quality of the syllabus and teaching (see the 1998 Act) This system did not create hierarchical relationships between the State and the school/teachers or, indeed, any legal basis for an obligation by the latter to keep the former informed. Neither did Article 2 of Protocol No. 1 require a State to directly administer schools to the point of managing all disciplinary matters.

82 . As to whether, nevertheless, the State had fulfilled its positive obligation to prevent treatment in breach of Article 3, the ECLJ did not consider that the State was required to adopt other measures in addition to the criminal complaint and civil proceedings available in the early 1970s. The applicant ’ s parents and the Manager were at fault: they were aware of the relevant facts, they had an obligation - at least a moral one - to denounce LH ’ s acts, they should have made a criminal complaint about LH, and pursued other civil options, but they chose not to. No State authority knew of the abuse of the applicant in 1973 but, once informed, the State reacted promptly and adequately.

83 . Since the State was required neither by domestic law or the Convention to take on the day to day management of primary education, the State was not responsible for the acts of LH and, indeed, to suggest that it was responsible for not preventing the acts of LH amounted to the imposition of strict liability. Furthermore, the private and denominational character of school management was never an obstacle to the prevention or deterrence of abuse and never excluded the application of the law.

5. The Court ’ s assessment of admissibility

84 . The Government argued that the applicant has not exhausted all domestic remedies against both the State and other bodies/persons.

85 . The Court recalls that , if there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required ( O ’ Reilly v. Ireland , no. 24196/94, Commission decision of 22 January 1996; T.W. v. Malta [GC], no. 25644/94, § 34 , 29 April 1999 ; Moreira Barbosa v. Portugal ( dec .), no. 65681/01, ECHR 2004-V ; Jeličić v. Bosnia and Herzegovina ( dec .), no. 41183/02, 15 November 2005 ; and, more recently, Shkalla v. Albania , no. 26866/05 , § 61 , 10 May 2011 ; as well as Leja v. Latvia , no. 71072/01 , § 46 , 14 June 2011 ).

86 . The Court notes that the applicant ’ s essential grievances concerned the State ’ s responsibility for the abuse suffered by her as well as the availability of a civil remedy against the State in that respect. She chose to pursue to the Supreme Court an action alleging State responsibility for the abuse on the basis of vicarious liability and the Court considers this was a reasonable choice. It could not be said that the eventual outcome was clearly foreseeable (her case was a lead domestic case and it ended with a ma jo rity judgment of the Supreme Court). If successful it could have addressed her essential grievance: it would have involved a finding of State responsibility and an award of damages against it. Although the Government pointed out that the basis of State responsibility invoked domestically (vicarious liability) was different to that pursued before this Court (negligence), the above-cited case-law makes it clear that the applicant had the right consistently with Article 34 to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when ultimately unsuccessful with the reasonable route chosen , to take another remedial route with essentially the same objective.

87 . These complaints cannot therefore be dismissed as inadmissible on grounds of a failure to exhaust domestic remedies within the meaning of Article 34 of the Convention. The effectiveness of other remedies, on which the Government relied and which were not pursued by the applicant, must be jo ined to the merits of the related complaint under Article 13 of the Convention. It also follows that the applicant was entitled to introduce the within complaints within six months of the final decision in that vicarious liability action which was the Supreme Court judgment of 19 December 2008 so that these complaints cannot be dismissed as having been introduced outside of the time-limit fixed by Article 34 of the Convention.

88 . The Government also argued that the applicant could no longer claim to be a victim of a violation of the Convention because of the damages award in her favour against LH and by the CICT. The applicant dispute d this arguing, inter alia, that the Convention requires, but she did not have available to her, a remedy in which the responsibility of the State could be established and damages awarded. The Court considers that the objection based on victim grounds invoked by the Government must also be jo ined to the merits of the related complaint under Article 13 of the Convention .

89 . Moreover, the question of whether the responsibility of the State can be engaged, when the impugned ill-treatment of the applicant was by the principal of a privately owned and managed school, must be jo ined to the merits of the related complaint under Article 3 of the Convention .

90 . Finally, the Court considers, in the light of the parties ’ submissions, that the se complaints under Articles 3, 8, 13, 14 and Article 2 of Protocol No. 1 raise serious issues of fact and law under the Convention, the determination of which requires an examination o f the merits. The Court concludes therefore that these complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Decides to strike out the complaints about the length of civil proceedings and about a lack of an effective remedy in that respect; and

Declares the remainder of the application admissible , without prejudging the merits of the case.

             Claudia Westerdiek Dean Spielmann Registrar President