TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The debate was not in the department about how to investigate the complaint.
AP1 (Applicant): It was about what to do about a troublemaker who complained.
AP1 (Applicant): By choosing, Ryan says, to take the easy way out, the persons and bodies with knowledge of Mr. Brander's
AP1 (Applicant): activities must bear heavy responsibility for the damage he did to children.
AP1 (Applicant): But the state says, LH is not Brander.
AP1 (Applicant): Ryan considers that specifically, because in Brander he considers the conduct of the Department of Education and the contrast between theory and practice in the handling of complaints.
AP1 (Applicant): Ryan concludes, as to residential institutions, that the system failed the children.
AP1 (Applicant): It was not just a matter of occasional lapses.
AP1 (Applicant): The department gave the impression of investigation, but actually failed to do so and delayed the involvement of proper authorities.
AP1 (Applicant): The department did not apply the standards in the rules and their own guidelines when investigating complaints.
AP1 (Applicant): And the state says, you see, that these findings don't apply to national schools, that relates to residential schools.
AP1 (Applicant): They say that this very same Department of Education was, as to national schools, a stalwart defender of human rights.
AP1 (Applicant): That cannot be credited, nor did Ryan credit it.
AP1 (Applicant): He says he received a large number of complaints from national schools, and the Brander investigation, quote, illustrates the ease with which sexual predators could operate within the educational system without fear of disclosure or sanction.
AP1 (Applicant): For Ryan, Brander is not an isolated case.
AP1 (Applicant): He is an example of a general and abject state failure to protect children, even from known abusers.
AP1 (Applicant): Ryan's conclusions in the executive summary I invite you to look at.
AP1 (Applicant): But number 30 sums it up, as to the Department of Education.
AP1 (Applicant): A stunning conclusion.
AP1 (Applicant): Complaints about sexual abuse were generally dismissed or ignored.
AP1 (Applicant): Ryan at volume 3, 4, chapter 3, in a footnote, admittedly, at page 205, refers to the Carrigan report on sexual offenses, which actually ultimately led to the 1935 Criminal Law Act cited by the state.
AP1 (Applicant): Ryan, the footnote records, Carrigan did not discriminate between crimes within the family or at schools of whatever type.
AP1 (Applicant): And goes on to say the following.
AP1 (Applicant): The general lesson which this report and its non-publication, it was squashed, teaches is that there was a good deal of sexual crime against children in the early 1930s.
AP1 (Applicant): And there is no reason to suppose that this children's position changed at any rate for several decades.
AP1 (Applicant): And also, that the, again, this is stunning, the official approach was to sweep such matters under the carpet.
AP1 (Applicant): Ireland's defense is that Ireland had no role in ensuring that known sex abuse of children was reported to it.
AP1 (Applicant): The defense is see no evil, hear no evil, and this court should not countenance it.
Dean Spielmann (JudgeP): Thank you Mr. Holland. I call Mr. Mc Donagh.
GR1 (Government): May it please the Court.
GR1 (Government): At the time relevant, at all times relevant to this case in Ireland, the sexual abuse of children was a most serious criminal offense.
GR1 (Government): And the perpetrator who abused the applicant was prosecuted when the police were informed, an investigation took place, and he received a prison sentence.
GR1 (Government): The applicant thereafter commenced the domestic proceedings.
GR1 (Government): And in those proceedings, she made three claims.
GR1 (Government): The second claim was that the state was vicariously liable for the actions of the teacher, Leo Hickey.
GR1 (Government): The third claim suggested there was an Irish constitutional duty which had been breached.
GR1 (Government): The second and third parts of her claim don't concern this court in any significant way.
GR1 (Government): But the first part of her claim in the domestic proceedings certainly does.
GR1 (Government): This was the part of her claim where she alleged direct negligence against the Minister for Education.
GR1 (Government): At issue in the Irish proceedings, and at issue here in the applicant's case, is what the Irish state knew or ought to have known of the risk that a primary school child in a day school in 1972-73 in Ireland, the risk of that primary school child in a school established by a bishop, managed by a clergyman, the risk of that child being sexually abused by a teacher who was, to use my friend's phrase, a pillar of society, where the state had no knowledge of any such propensity on the part of that teacher.
GR1 (Government): In the course of the first question which was posed to the parties, references made to a number of cases, including the case of E versus the United Kingdom.
GR1 (Government): In that case, the authorities knew extensively of the propensity of the perpetrator.
GR1 (Government): But the Court's focus in that case was post-1977, where there was very considerable knowledge of the actions of E, of the perpetrator.
GR1 (Government): But even before 1977, in relation to a period where there's no finding of a breach of Article III, there was still some knowledge of the propensity of the perpetrator.
GR1 (Government): But there's no finding of this Court against the terms of a breach.
GR1 (Government): But in fact, in this case, there was no knowledge of any propensity on the part of the perpetrator.
GR1 (Government): In the case of A versus the United Kingdom, it's clear that the United Kingdom permitted reasonable chastisement as a defense in the context of what might seem a very brutal assault of a child.
GR1 (Government): And accordingly, that reasonable chastisement defense had led to the acquittal of the perpetrator.
GR1 (Government): And clearly, that is a totally different situation to here.
GR1 (Government): As regards the case of Costolo Roberts, we say the applicant misunderstands the judgment in that case.
GR1 (Government): Although the case was certainly about punishment being inflicted in a private school, the Court makes clear in that case that it was the school's disciplinary system that fell within the ambit of the provision of education.
GR1 (Government): Although the corporal punishment in that case was the act of the headmaster, the administration of corporal punishment engaged the responsibility of the United Kingdom.
GR1 (Government): In other words, the United Kingdom tolerated, permitted, quite expressly so, the administration of corporal punishment in a school such as that attended by Mr. Costolo Roberts.
GR1 (Government): In contrast, the sexual abuse of children is the very antithesis of what a teacher is employed to do in a school and cannot be equated in any sense to a school's disciplinary system.
GR1 (Government): In terms of the existence in Ireland of control mechanisms to have prevented untoward occurrences in the nature of sexual abuse, the question of control mechanisms for the protection of children cannot, in logic, be treated as an issue divorced from what needs to be controlled and why it needs to be controlled.
GR1 (Government): In other words, the extent to which a control mechanism is appropriate is directly related to the extent of the risk that requires to be controlled.
GR1 (Government): The applicant in today's case claimed in the domestic court that the state was liable to compensate her as the state had been negligent and in breach of duty in its failure to put in place control mechanisms.
GR1 (Government): In other words, sufficient protocols, instructions, training, safeguards, and procedures prior to the abuse in 1973 so as to have prevented her from being abused or to have lessened the prospect of her being abused.
GR1 (Government): These allegations of a failure to protect the applicant are detailed in 22 subparagraphs in the statement of her claim, which issued at the end of 1999.
GR1 (Government): It was March of 1999, in fact, the 3rd of March.
GR1 (Government): By way of example, I want to quote and cite to the court two of those 22, please, to corroborate my suggestion that the same claim was initially advanced in the domestic court as is advanced here.
GR1 (Government): Subparagraph L of her particulars of claim suggests that the minister had failed to ensure that any complaints made against a teacher in the said school, including the principal teacher, was brought to the attention of the minister, either promptly or at all.
GR1 (Government): Secondly, subparagraph F, the minister failed to provide any or any adequate and proper training or supervision for the manager of the said premises or to ensure that such training and supervision was provided by the patron to the manager.
GR1 (Government): Both of these are merely examples of the detailed series of allegations in the statement of claim that the minister should have ensured prior to 1973 there was in place significant control mechanisms and procedures.
GR1 (Government): These claims mirror the claims the applicant makes in these proceedings.
GR1 (Government): And I'd cite, for example, paragraph 73 of her observations.
GR1 (Government): In truth, the applicant makes the same claims as were pleaded before the Irish High Court, but has simply adapted them to suit a convention context.
GR1 (Government): No real attempt was made by the applicant, notwithstanding this formed an important part of her case, to pursue this case at the High Court in Ireland.
GR1 (Government): She did not abandon that part of her case, so she pursued it right up to the point where the High Court judge dismissed it.
GR1 (Government): But she didn't call evidence to support it.
GR1 (Government): And that is a major issue, we say, in whether the applicant failed to exhaust her domestic remedies.
GR1 (Government): Having pleaded her case, she didn't call the evidence to support it.
GR1 (Government): So when the High Court judge held that there was no prima facie case made out by the applicant, he had no real choice in the matter, because the applicant hadn't put the witnesses in the witness box to corroborate, give evidence that her pleas were substantiated.
GR1 (Government): And although the minister was in a position to call evidence in response, there was no need to, because there was simply no substantive evidence called to support this first and fundamental part of her case.
GR1 (Government): We say, the government says, that the applicant's failure to pursue this issue before the domestic courts is relevant to the question of admissibility.
GR1 (Government): That is our primary argument in respect of admissibility on this count.
GR1 (Government): It's not so much failing to make a complaint to this court within six months of the granting of a direction there's no case to answer.
GR1 (Government): It's rather the fact that the applicant brought her case, that the applicant knew or ought to have known of the risks associated with the applicant attending this school and yet failed to call evidence which could have been tested in the domestic context by cross-examination and then by the calling of further evidence.
GR1 (Government): In addition to the relevance of this argument to admissibility, this argument is also relevant and is a fundamental relevance to the substance of the substantive claim that the applicant makes in this regard.
GR1 (Government): There's a particular aspect of the evidence which we say on this issue which is of very great significance, and that relates to the report of Professor Ferguson, and I'll come back to that.
GR1 (Government): It's clearly impossible to address the adequacy of the reaction of the state to the risk of abuse at some point in the past, 30 or 40 years ago, without first establishing what the risks were and what the state knew or ought to have known.
GR1 (Government): But the applicant now finds herself in this court in the position of not being able to advance her claim without in some way relying on evidence in this regard.
GR1 (Government): Her dilemma is that not having called evidence on this point in the Irish courts, she can't point to a transcript, she can't point to evidence before the Irish courts which would help her with her claim.
GR1 (Government): Despite the fact she didn't call this evidence, despite the fact she abandoned this part of her claim, she still now tries to make it.
GR1 (Government): By way of example, at paragraph 40 of her written observations, she says, she refers to what she says is the woeful inadequacy of, absence of, such instructions, advice, and or training, and goes on to make these assertions in respect to the whole of Ireland.
GR1 (Government): It mirrors almost exactly the wording in her Irish statement of claim.
GR1 (Government): The applicant correctly points out that the current child protection framework in Ireland is reflected in the 2011 version of Children First.
GR1 (Government): The applicant states in her written observations that there was no such framework in place in 1970 or 1971.
GR1 (Government): And then she goes on to make the following assertion.
GR1 (Government): There is no reason why such a document did not exist in 1970 or 1971.
GR1 (Government): In fact, there is a reason why such a document did not exist in 1970 or 1971.
GR1 (Government): And that reason is at the core of an issue for the court today.
GR1 (Government): The applicant knows that reason.
GR1 (Government): And she knows that reason because four years after she pleaded her case, her legal advisors obtained an expert report from a highly qualified expert on the history of child protection in Ireland and Britain, and indeed, perhaps further afield, Professor Harry Ferguson.
GR1 (Government): And his report is appended at appendix 13 to our written observations, not to the applicant's written observations on the substantive issues.
GR1 (Government): It features in the just satisfaction written observations.
GR1 (Government): But we have appended it at appendix 13 in our replying written observations.
GR1 (Government): Professor Ferguson is not a lawyer, but a well-known academic who has specialized in the history of child protection.
GR1 (Government): So four years after the statement of claim, in April 2003, his expert opinion is sought.
GR1 (Government): And it appears to us, a fair observation, that it's the content of that opinion that led to the applicant not pursuing her case in direct negligence against the state.
GR1 (Government): And the reason she didn't do it is because Professor Ferguson says in terms, there's no evidence to support that part of your case.
GR1 (Government): He was specifically asked to address the question of the adequacy of child protection control mechanisms in the Ireland of 30 years earlier.
GR1 (Government): And in that report, and I would commend the report to the court, because in many ways it is very relevant, certainly in respect of this aspect of matters, he informed the applicant she would find it very difficult to establish what he'd been asked to advise on.
GR1 (Government): And I'm quoting here, very difficult to establish that if the state had gone to any responsible educational psychologist in 1973, they would have been told that the protocols which are now in place in 2003, now in place, needed to be in place then.
GR1 (Government): He then places what occurred in the historical and sociological context.
GR1 (Government): He cites statistics.
GR1 (Government): He cites reports of the Society for the Protection of Cruelty to Children in Britain and Ireland.
GR1 (Government): He cites the understanding of child sexual abuse as it was in the 1950s and 60s and earlier.
GR1 (Government): He felt there was a minimal awareness of the risks of abuse of the type that occurred here.
GR1 (Government): At day school, a teacher, no known propensity, he felt there was minimal knowledge of the risks of a person in authority abusing a child.
GR1 (Government): He also states in a further portion of his report that the very basis upon which the applicant now seeks in this court to argue that the state ought to have known of the abuse.
GR1 (Government): He states that this basis, and I'm quoting here, will be torn apart on the basis that however much we would like it to be otherwise, it is not possible or just to project back onto the past knowledge and systems of accountability that we have today.
GR1 (Government): Their side, that's the government, their side can argue that people and even the best of professionals, responsible educational psychologists included, cannot be expected to know what they cannot know.
GR1 (Government): And the tragedy is that children like Louise were not protected as a consequence.
GR1 (Government): That was his view in April 2003 of the basis upon which the applicant then plaintiff was going to try and allege negligence against the state.
GR1 (Government): That view appears to have influenced the applicant.
GR1 (Government): Be that as it may, no evidence was called on this issue in the Irish High Court.
GR1 (Government): Professor Ferguson also addresses in the course of that report the belief that the school management was responsible.
GR1 (Government): He's very strongly of that view.
GR1 (Government): But at that stage, of course, four years down the line, school management wasn't joined in the proceedings.
GR1 (Government): The bishop wasn't joined.
GR1 (Government): There was no attempt to sue the manager of the school or the estate of the predecessor.
GR1 (Government): They simply didn't feature in the case.
GR1 (Government): So his very strong view in that report that the school was responsible was really irrelevant.
GR1 (Government): He also, as a non-lawyer, offers views on the responsibility of the minister, the carious responsibility.
GR1 (Government): That was the argument which failed in the Irish courts on legal principles, which the Supreme Court sets out in some detail.
GR1 (Government): But the essential relevance of his report is that as an expert, and his expertise is detailed at the top of his report, his extensive experience in the area was that the arguments the applicant wants to make today, is making today, would be torn apart.
GR1 (Government): And that's, we suspect, very much why that argument wasn't pursued.
GR1 (Government): The applicant, of course, doesn't rely on the report of Professor Ferguson before this court.
GR1 (Government): But it certainly appears to have contributed to her decision.
GR1 (Government): With great respect to the decision of the Fifth Section, which felt that the applicant's claim was admissible, and she should not have been expected to pursue that part of her case before the Irish courts, having lost on vicarious liability, we would respectfully suggest, as we do in our written observations, that in fact, the issue of admissibility remains very much a live issue.
GR1 (Government): It's not that we were of the view that having failed before the Irish courts on vicarious liability, the applicant should then have pursued another remedy.
GR1 (Government): That's not our argument.
GR1 (Government): Our argument is that having pursued the remedy up to the point of calling evidence, she effectively abandoned it, thereby depriving the Irish State of the opportunity of testing and contesting any evidence on this issue, which it would have done had the matter been pursued.
GR1 (Government): And I think the report of Professor Ferguson is of very great interest in that regard as well.
GR1 (Government): What the applicant does do before this court is seek to rely on a number of other matters to suggest the Irish State knew or ought to have known of the risks.
GR1 (Government): Having ignored her own expert, she refers to, in her written observations, to the Irish Human Rights Commission, citing State suppression of the 1931 Carrigan Report.
GR1 (Government): This is, if I may say so, I respectfully suggest a misnomer.
GR1 (Government): The report was not published or circulated, but the report was implemented.
GR1 (Government): The report led to the amendments brought about by the Criminal Law Amendment back 1935, which created some offenses.
GR1 (Government): It made other offenses more severe.
GR1 (Government): It removed a defense of reasonable mistake as to age in respect of another offense.
GR1 (Government): It certainly made the statutory regime more strict in respect of offenses against young people.
GR1 (Government): The report wasn't circulated.
GR1 (Government): If one person says that's suppression, so be it.
GR1 (Government): But in the Europe of 1931, one suspects that it couldn't amount to suppression.
GR1 (Government): It simply wasn't put fit to circulate it.
GR1 (Government): But the results of the report were implemented.
GR1 (Government): But the more important fallacy, if I may say so, underlying the attempt to rely on this report, is the fact that at paragraph 84 of her observations, the applicant clearly states that the Carrigan report documented extensive state knowledge of very many cases of sexual abuse of primary school children.
GR1 (Government): It did not.
GR1 (Government): It simply did not.
GR1 (Government): It is appended at appendix 14 to the state's observations and merits being read in full.
GR1 (Government): It is a report of its time.
GR1 (Government): It highlights a number of issues.
GR1 (Government): Juvenile prostitution, incest in tenements where families are living in close proximity.
GR1 (Government): It certainly refers to child prostitution.
GR1 (Government): It refers to the introduction of dance halls in rural areas.
GR1 (Government): It refers to motor cars and the difficulties associated with the free availability of motor cars.
GR1 (Government): So it certainly deals with the sexual mores of young people and the risks, the attendant risks, from exploitation by family members.
GR1 (Government): But it does not document.
GR1 (Government): It simply does not document any risks that were felt to arise in respect of primary school children or any children in school from teachers.
GR1 (Government): Absolutely no mention in the report whatsoever.
GR1 (Government): And we would respectfully suggest that a person who had read the Carrigan report could not make the assertion that it documents many cases of sexual abuse of primary school children.
GR1 (Government): The Carrigan report, therefore, was not the smoking gun that may have been suggested.
GR1 (Government): In addition to an inappropriate reliance on the Carrigan report, there is a reference, a correct reference, to the fact that in the course of the Supreme Court judgment in the applicant's own case, Mr. Justice Gagin and Mr. Justice Fennelly
GR1 (Government): both refer to the fact that in recent years, the Supreme Court and the High Court in Ireland have had to deal with a, they've become familiar with, allegations of sexual assaults, including sexual assaults by teachers.
GR1 (Government): But the applicant does not explain the readily available fact that the period which the judges are referring is the period from the mid-1990s, some 25 years, 23, 24 years after the applicant was abused.
GR1 (Government): The applicant also refers to the Ryan report.
GR1 (Government): And we say inappropriately, the Ryan report was into residential institutions, where by and large, religious orders are placed in loco parentis of children, most often by the state, often on foot of court orders.
GR1 (Government): And unfortunately, in a very distressing aspect of Irish history, on many occasions, those orders and people involved in those orders did not behave appropriately towards those children, and indeed, most inappropriately towards those children.
GR1 (Government): And there are many findings in the Ryan report that those responsible for the residential institutions did not in any sense vindicate the rights, indeed, the childhood of those children.
GR1 (Government): But in that context, there was the case of Mr. Brander.
GR1 (Government): Mr. Brander is somebody who, due to the negligence and failures