CASE OF O'KEEFFE v. IRELAND

1. The case originated in an application (no. 35810/09) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Ms Louise O’Keeffe (“the applicant”), on 16 June 2009.
2. The applicant was represented by Mr E. Cantillon, a lawyer practising in Cork. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs.
3. The applicant mainly complained under Article 3 of the Convention that the system of primary education had failed to protect her from sexual abuse by a teacher in 1973 and, under Article 13, that she did not have an effective domestic remedy in that respect. She also relied on Article 8 and Article 2 of Protocol No. 1, both alone and in conjunction with Article 14. She also complained of the length of her civil proceedings and of the absence of an effective domestic remedy in that respect, relying on Article 6 alone and in conjunction with Article 13.
4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). Ann Power-Forde, the judge elected in respect of Ireland, withdrew from sitting in the case (Rule 28). On 13 June 2012 the President of the Chamber decided to appoint Mr Justice Charleton to sit as an ad hoc judge (Article 26 § 4 of the Convention, and Rule 29 § 1).
5. On 26 June 2012 a Chamber of that Section (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) examined the case. The Chamber, unanimously, struck out the complaints regarding the length of the domestic proceedings and the lack of an effective domestic remedy in that regard, given the friendly settlement reached between the parties on those issues. It also, unanimously, declared admissible the remaining complaints.
6. On 20 September 2012 that Chamber (Angelika Nußberger, substitute judge, replaced Ganna Yudkivska who was unable to take part in the further consideration of the case (Rule 24 § 3)) relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24, with Mr Justice Charleton continuing to act as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).
8. The applicant and the Government each filed further observations (Rule 59 § 1) on the merits. In addition, the Irish Human Rights Commission and the European Centre for Law and Justice had been given leave by the President of the Chamber (Article 36 § 2 of the Convention and Rule 44 § 3) to intervene in the written procedure and their submissions to the Chamber were admitted to the Grand Chamber file.
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 March 2013 (Rule 59 § 3).
10. There appeared before the Court:
(a) for the GovernmentMr P. White, Agent, Mr F. McDonagh, Senior Counsel, Mr C. Power, Barrister, Counsel, Ms S. Farrell, Office of the Attorney General, Ms M. McGarry, Department of Education and Skills, Advisers;
(b) for the applicantMr D. Holland, Senior Counsel, Mr A. Keating, Senior Counsel, Counsel, Mr E. Cantillon, Solicitor, Mrs M. Scriven, Solicitor, Representatives.
11. The Court heard addresses by Mr Holland and Mr McDonagh.
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant was born in 1964 and lives in Cork, Ireland.
13. The following facts were not contested by the parties.
14. The applicant attended Dunderrow National School from 1968. The school was owned, through trustees, by the Catholic Bishop of the Diocese of Cork and Ross who was recognised by the Department of Education and Science (“the Department”) as the school’s patron. The manager (S.), acting on behalf of the bishop, was the local parish priest. The latter being elderly and infirm, a local priest (Ó.) was the de facto manager who acted on behalf of, and in the interests of, S. The term “manager” used below refers both to Ó. and to the management function he performed. Dunderrow National School had two teachers, one of whom (L.H.) was the school’s principal, a married man. Dunderrow was one of four national schools in the applicant’s parish.
15. In 1971 a parent of a child complained to the manager that L.H. had sexually abused her child. That complaint was not reported to the police, to the Department or to any other State authority and was not acted upon by the manager.
16. During the first six months of 1973 the applicant was subjected to approximately twenty sexual assaults by L.H. during music lessons in his classroom. During the time she attended those lessons, the applicant and her parents were unaware of the allegation made in 1971 about L.H.
17. In September 1973 other parents brought to the applicant’s parents’ attention similar allegations concerning L.H. Following a meeting of parents chaired by the manager about this, L.H. went on sick leave. In September 1973 he resigned from his post. Those allegations were not reported at that time to the police, to the Department or to any other State authority. In a brief conversation, the applicant’s mother asked her whether L.H. had touched her. The applicant responded to the effect that something of a sexual nature had happened but she did not recall the conversation going any further. In January 1974 the manager notified the Department that L.H. had resigned and named his replacement. Soon thereafter L.H. took up a position in another national school where he taught until his retirement in 1995.
18. Between 1969 and 1973, the inspector assigned to the region visited Dunderrow National School on six occasions which was, as he later stated in evidence, an above average number of visits. He met with L.H. and S. He attended parent meetings on the question of Dunderrow’s amalgamation with other schools. No complaint about L.H. was made to him. He observed the teaching work of L.H. and considered it satisfactory.
19. 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 L.H. 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. L.H. was charged with 386 criminal offences of sexual abuse involving some twenty-one former pupils of the school during a period of about ten years. In 1998 he pleaded guilty to twenty-one 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 (“the 1965 Rules”).
20. 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 L.H. and understood the extent of those problems.
B. Criminal Injuries Compensation Tribunal (“the CICT”)
21. In October 1998 the applicant applied to the CICT for compensation. An initial award (44,814.14 euros (EUR)) was made by a single judge. The applicant appealed to a CICT panel. She claimed that the CICT gave her the option of continuing her appeal (at the risk of finding that her CICT application would be rejected as out of time) or of accepting the initial offer of the CICT with some additional expenses (EUR 53,962.24, the non-pecuniary aspect being EUR 27,000). The applicant accepted the offer by letter of 5 November 2002 and gave the standard undertaking to repay the CICT award from any other award she may receive, from whatever source, in relation to the same injury. The award was made on an ex gratia basis. Since the State is never a party to CICT proceedings, it became aware of this award later before the High Court (see directly below).
C. Civil action for damages (No. 1998/10555P)
22. On 29 September 1998 the applicant instituted a civil action against L.H. and 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 by L.H. 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 against, and put a stop to, the systematic abuse by L.H. since 1962; (b) vicarious liability of the State Defendants for the acts of L.H. since, inter alia, the true relationship between him and the State was one of employment; and (c) liability given the applicant’s constitutional right to bodily integrity, the responsibility of the State Defendants to provide primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility.
23. Since L.H. 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 L.H. in the sum of EUR 305,104, comprising EUR 200,000 in general damages, EUR 50,000 in aggravated damages, EUR 50,000 in exemplary damages, and EUR 5,104 in special damages. The applicant took enforcement proceedings. L.H. claimed he had insufficient means and she obtained an instalment order of EUR 400 per month. The first payment was received in November 2007 so that she has been paid in the region of EUR 31,000 to date. She registered a judgment mortgage against that part of the family home owned by L.H.
24. As regards her case against the State Defendants, she requested a Professor Ferguson to advise her on the question of the adequacy of child-protection mechanisms in Ireland in the 1970s. He responded by letter of 14 April 2003. Professor Ferguson agreed that, if the child-protection protocols existing in 2003 had been in place in 1973, it was very likely that the applicant’s abuse would have been acted upon in a manner which would have ensured the promotion of her welfare. He feared that pleading the case on the basis of what the State should have known at the time would be unsuccessful because it would not be possible to project onto the past the knowledge and systems of accountability that existed in the present day.
25. 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 regarding the absence of a State system for adverting to and addressing sexual abuse in national schools, asked 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.”
26. When the applicant’s case concluded, the State Defendants applied for a direction to strike out the case on the basis that no prima facie case had been made out by the applicant as regards all three grounds, submitting, inter alia, that there was no evidence of negligence. On 9 March 2004 the High Court accepted the State Defendants’ application, the court being “satisfied that the plaintiff had not established a case in negligence against the [State Defendants]” (the “non-suit” order). The court did not and was not called upon to distinguish between the two bases of the negligence claim. However, a prima facie case had been made out on the questions of vicarious and constitutional liability and evidence would be called from the defendants on those matters. The trial finished on 12 March 2004.
27. On 20 January 2006 the High Court delivered judgment. It found that the action was not statute barred. It also concluded that the State was not vicariously liable for the sexual assaults perpetrated by L.H. given the relationship between the State and the denominational management of national schools. Although counsel for the applicant had orally suggested that the State should be vicariously liable for the inaction of the manager, the High Court judgment did not address this point. Finally, 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. The costs of the proceedings against the State Defendants were awarded against the applicant.
2. Supreme Court ( O’Keeffe v. Hickey, [2008] IESC 72)
28. In May 2006 the applicant appealed to the Supreme Court. Her Notice of Appeal challenged the finding on vicarious liability and 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 the manager. Mr Justice Hardiman described the appeal as limited to the State’s vicarious liability for the acts of L.H. and the manager, although he commented in his judgment on the other two initial claims of the applicant (direct negligence and the constitutional claim). Mr Justice Fennelly also considered that the appeal concerned only vicarious liability for the acts of L.H., although he refused to accept that the State was vicariously liable for the manager.
29. The appeal was heard from 11 to 13 June 2006. By a majority judgment of 19 December 2008 (Hardiman J and Fennelly J, with whom Chief Justice Murray and Mr Justice Denham concurred and Mr Justice Geoghegan dissented), the Supreme Court dismissed the appeal.
30. 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 nineteenth century. Following denominational conflict and the later concession of Catholic emancipation in 1829, the dissenting churches and the 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 national education (encapsulated in the “Stanley letter” of 1831), State authorities 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 denominational manager. While State funding was accorded on a proportionate basis to all denominational schools, the population was at the time overwhelmingly Catholic so that the majority of national schools had Catholic patrons and managers.
31. Hardiman J went on to describe as “remarkable” the fact that, whilst in nineteenth-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 described the position after the inception of the Irish Free State in 1922 and 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”.
32. That expert witness went on to describe the answer of the Catholic Church in the 1950s to a request by a teachers’ trade union to have local committees deal with maintaining and repairing school buildings. The Catholic Church had responded that there could be no interference whatever with the “inherited tradition of managerial rights of schooling”. The limited proposal of the union was considered to 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”. Hardiman J referred to the “urgent desire” of the denominations to maintain their role in primary education.
33. As Hardiman J explained, the Constitution reflected this managerial structure: the obligation in Article 42 § 4) on the State to “provide for” free primary education reflected a largely State-funded, but entirely clerically administered, system of education. As a result there were approximately 3,000 national schools in Ireland: most were under the control of Catholic patrons and managers, a few were under the control of other denominations and even fewer were controlled by non-denominational groups.
34. Hardiman J 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 by the Education Act 1998; prior to that Act the system had been administered by the 1965 Rules as well as by other ministerial letters, circulars and notes.
35. As to what could be gleaned from the 1965 Rules, Hardiman J noted:
“The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher. He inspected the schools for their academic performance, other than religious instruction, but it did not go further than that. He was ... deprived of the direct control of the schools, and of the enormous power which that brings, because ‘there was interposed between the State and the child the manager or the committee or board of management’. Equally, the Minister did not appoint the manager or the teacher or directly supervise him. This, indeed, was the essence of the ‘managerial system’. I cannot see, on the evidence, that he had any scope whatever to make a personal judgment about either of these two individuals. Moreover, it seems to have been instinctively recognised by the parents who complained about the first defendant that the person with direct authority to receive the complaint and do something about it was the clerical and clerically appointed manager. No complaint, on the evidence, was directed to the Minister or to any State body. The matter was handled, so to speak, ‘in house’ at the election of the complainants. The end result of the process was a voluntary resignation followed by the employment of [L.H.] in another school in the vicinity.
All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.”
36. Hardiman J observed that the sexual abuse of a pupil was the negation of what L.H. was employed to do but he also found that in 1973 it “was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school”. He considered it “notable” that she did not sue the patron, the diocese of which he was bishop, his successors or his estate, the trustees of the property of the Diocese of Cork and Ross (owners of the school), the manager or his estate or successors.
37. Hardiman J concluded that, having regard to the relevant test 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 wrongs committed against her. In particular, even applying the wider form of vicarious liability invoked, the Minister’s absence of direct control over L.H., long since ceded to the manager and the patron, prevented a finding against the Minister. The relationship of L.H. and the State – a “triangular one with the Church” – was entirely sui generis and a product of Ireland’s unique historical experience. The manager 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, [L.H.] 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”.
38. Hardiman J commented on two of the applicant’s original claims which had “not been proceeded with”.
39. As to the claim of negligence by the State, he remarked
“... 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”.
40. 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 stated:
“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 Kenny J 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 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.”
41. Hardiman J concluded by pointing out 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 Supreme Court since the applicant had not sued them.
42. Fennelly J, who delivered the other majority judgment, began by noting that the “calamity of the exploitation of authority over children so as to abuse them sexually” had shaken society to its foundations. Cases of sexual abuse had preoccupied the criminal courts and the Supreme Court for many years and it was surprising that that court was confronted for the first time with questions relating to the liability of institutions including the State for sexual abuse of schoolchildren in a national school by a teacher.
43. Fennelly J also described in some detail the history and consequent legal status of national schools, which system had survived independence in 1922 and the enactment of the Constitution in 1937. He accepted the expert’s evidence that it was not a State system but rather a “State-supported system”. He noted the clear division of power between the State (funding and fixing the curriculum) and the manager (day-to-day running of the school including hiring and firing teachers), noting that the different religions were determined to preserve and guard their own distinct religious education so that national schools developed on a denominational basis.
44. He considered inspectors to be a crucially important part of the system of State oversight and maintenance of standards which enabled the Minister to be satisfied about the quality of the system. However, he noted that the inspection regime did not alter the division of responsibilities between the State and the manager, the inspectors having no power to direct teachers in the carrying out of their duties. The 1965 Rules reflected this allocation of responsibilities between the Church and State authorities. Even if, in modern times, the State played a more intrusive role, responsibility for day-to-day management remained with the manager. He concluded that the State was not vicariously liable for the acts of L.H. or, for the same reasons, for the failure of the manager to report the 1971 complaint to the State. L.H. was not employed by the State but, in law, by the manager. While L.H. had to have the qualifications laid down by the Minister and had to observe the 1965 Rules and while the State had disciplinary powers in those respects, L.H. was not engaged by the State and the State could not dismiss him.
45. Referring back to the reference in the Notice of Appeal to the State’s liability for the failure of the manager to report the 1971 complaint, Fennelly J concluded that “[f]or the same reason, insofar as it is necessary to say so, there can be no liability for the failure of [the manager] to report the 1971 complaint. [The manager] was not the employee of the second defendant.”
46. Geoghegan J dissented. He accepted that neither the Department nor its inspectors had any knowledge of the assaults. He noted that, for all practical purposes, most primary education in Ireland took the form of a joint enterprise between Church and State and he considered that that relationship was such that there was a sufficient connection between the State and the creation of the risk as to render the State liable. Geoghegan J relied, notably, on the role of school inspectors. 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 national-school pupil was considered well-founded by an inquiry set up by the Department, it could lead to the withdrawal of recognition or to a police investigation and, if the police found the complaint justified, to the withdrawal of the teacher’s licence to teach.
47. By a judgment of 9 May 2009 the Supreme Court vacated the High Court order for costs against the applicant since it was not disputed that hers was an important and complex test case. It determined that each party had to bear its own costs related to the action against the State Defendants.
48. The applicant was legally represented throughout the civil proceedings, although she did not have legal aid.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Primary education in Ireland
49. The Court refers to the description of the history and structure of the national-schools system of primary education provided by the Supreme Court in O’Keeffe v. Hickey, ([2008] IESC 72) and, notably, by Hardiman J and Fennelly J (see paragraphs 30-35 and 42 ‑ 44 above).
50. Section 4 of the School Attendance Act 1926 required parents to ensure their children attended a national school or another suitable school, unless there was a reasonable excuse for not so doing, for example if the child was receiving suitable primary education elsewhere, if there was no national school accessible to which the parent did not object on religious grounds, or if the child was prevented from attending by some other sufficient cause. Attendance in full-time education was therefore compulsory for all children between 6 and 14 years of age until 1969 when the official school-leaving age was increased to 16. Primary education has been universally free in Ireland since the nineteenth century.
51. The vast majority of children attending primary school attended “national schools” which are State-financed and denominational primary-education establishments. Department reports for 1972/73 and 1973/74 recorded the existence of 3,776 and 3,688 national schools, respectively. The Department’s statistical report for February 1973 indicated that 94% of primary schools were national schools. According to the 1965 Investment in Education Report, 91% of national schools were Catholic-run and catered for 97.6% of national-school pupils while 9% were Protestant-run, catering for 2.4% of such pupils. A 2011 report by the Department notes that approximately 96% of primary schools remained under denominational patronage and management (including 89.65% under Catholic patronage and management).
52. In 1963/64 there were 192 fee-paying non-State-aided primary schools for approximately 21,000 children which represented about 4 to 4.5% of all primary-school pupils. The vast majority of these schools were in urban areas, the great majority of which were in Dublin.
53. The “Commission on School Accommodation’s Report on the Revised Criteria for the Establishment of New Primary Schools” in February 2011 confirmed that, until the 1970s, the only choice effectively available to parents was the local national school. It considered that by the end of the 1970s there was evidence of change with the establishment in 1978 of the first multi-denominational school and a growth in Irish language inter-denominational and multi-denominational schools.
54. Article 42 is entitled “Education” and 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.”
55. In McEneaney v. the Minister for Education ([1941] IR 430), the Supreme Court observed that for “more than a century it has been recognised that the provision of primary education is a national obligation”. Article 42 § 4) conferred on children a right to receive free primary education and the words “provide for” meant that the State did not itself have to educate children but rather had to ensure that appropriate education was provided to them ( Crowley v. Ireland [1980] IR 102).
56. The Children Act 1908 governed child protection and contemplated State intervention in the form of taking a child into care in cases of inter-familial abuse. The Education Act 1998 (“the 1988 Act”) was the first comprehensive legislation on education since the foundation of the State. It put on a statutory basis the State-funded and privately managed nature of primary education, making no fundamental structural changes thereto.
4. Rules for national schools (“the 1965 Rules”) and relevant ministerial circulars
57. Rules in place before independence in 1922 were applied to national schools until the 1965 Rules were adopted by the Department. While the 1965 Rules were neither primary nor secondary legislation, they have legal force and form part of the relevant statutory regime ( Brown v. Board of management of Rathfarnham Parish national school and Others ([2006] IEHC 178). Otherwise, the Department regulated matters within its remit by notes, circulars and other official Department instruments. The Minister could withdraw recognition from a school or withdraw an individual teacher’s licence if the 1965 Rules were not complied with (Rules 30 and 108 of the 1965 Rules, respectively).
5. Managers and boards of management
58. Rule 15 of the 1965 Rules provided that the manager was charged with the direct government of the school, the appointment of the teachers and, subject to the Minister’s approval, their removal. A manager was to visit a school and ensure the 1965 Rules were complied with (Rule 16). Subject to the authority of the manager, the principal was responsible for discipline, the control of the other members of the teaching staff and all other matters connected with school arrangements (Rule 123(4)).
59. Rule 121 set out rules for teachers’ conduct: they had to, inter alia, act in a spirit of obedience to the law; pay the strictest attention to the morals and general conduct of their pupils; take all reasonable precautions to ensure the safety of their pupils; and carry out all lawful instructions issued by the manager. Rule 130 required teachers to have a lively regard for the improvement and general welfare of their pupils, to treat them with kindness, combined with firmness, and to govern them through their affections and reason and not by harshness and severity.
60. Most primary schools now have boards of management. A ministerial circular (16/76) set out arrangements until the 1998 Act put the boards on a statutory basis. Section 14 of that Act provides 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. As bodies corporate with perpetual succession, the boards could sue and be sued.
61. The 1965 Rules envisaged that the Minister and persons authorised by him (inspectors) could visit and examine the schools whenever they thought fit (Rule 11). Rule 161 defined inspectors as being agents of the Minister required to supply the Minister with such local information as he or she might require for the effective administration of the system. They were required to call the attention of managers and teachers to any rules which appeared to them to be being infringed. They were entitled to communicate with the manager with reference to the general condition of the school “or to matters requiring the manager’s attention, making such suggestions as they may deem necessary”. An inspector was required to pay frequent incidental visits to the schools in his district and to make obligatory annual visits to assess the work of teachers. Circular 16/59 provided guidance to inspectors as to their role vis-à-vis managers and teachers, as to the manner in which incidental and general inspections were to be carried out and as regards their assessment of the work of teachers.
62. A Guidance Note of 6 May 1970 outlined the practice to be followed as regards complaints against teachers. The complainant was to be informed that the matter was one for the manager, in the first instance, and asked to clarify whether the complaint had been notified to the manager. The manager had to obtain observations from the relevant teacher and to forward those observations, together with the manager’s own views, to the Department. The Deputy Chief Inspector within the Department would then identify whether an investigation was required. If so, the inspector was to interview the manager, the teacher and parents. If an inquiry led to relevant findings against the teacher, Rule 108 authorised the Minister to take action against a teacher if the latter had conducted him or herself improperly or failed or refused to comply with the 1965 Rules. The Minister could pursue the teacher’s prosecution, withdraw recognition and/or withdraw or reduce the teacher’s salary. As noted above, the manager could dismiss a teacher, subject to the Minister’s approval.
B. Criminal law and related matters
63. The sexual abuse of a minor was prohibited by sections 50 and 51 of the Offences Against the Person Act 1861 (as amended). The Criminal Law Amendment Act 1935 (“the 1935 Act”) was designed to make further provision for the protection of young girls and to amend the law concerning sexual offences. Sections 1 and 2 of the 1935 Act created the offences of defilement of girls under 15 years of age and of girls between 15 and 17 years of age. Section 14 of the 1935 Act also provides:
“It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.”
Consequently, any girl under 15 years of age cannot consent to any form of sexual contact and any such contact was (and still is) a crime. In addition to these statutory offences, these acts amounted to ordinary assault.
64. There was no limitation period applicable to indictable offences in Ireland so that an offender could be prosecuted until the end of his or her life.
65. A victim can apply for compensation for injury suffered as a result of violent crime under the Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months, but it can be extended. The initial decision is taken without a hearing and a hearing is held in private before a division of the CICT. The appeal decision is final. Compensation is paid on an ex gratia basis. It covers expenses and losses (out-of-pocket expenses and bills less social welfare payments, salary or wages received while on sick leave) and, until 1986, non-pecuniary loss.
C. Civil law and related matters
66. A tort is a civil wrong which causes someone to suffer loss resulting in legal liability for the person who commits the tortious act, the tortfeasor. The tort of negligence requires proof that there was a duty of care between the plaintiff and the defendant (which involves establishing the existence of a relationship of proximity between the parties such as would call for the exercise of care by one party towards the other), that that duty was breached and that that breach was causative of damage (for example, Beatty v. The Rent Tribunal [2005] IESC 66).
67. Vicarious liability is the attribution of liability to a person or entity who did not cause injury and who may not be at fault but who has a particular legal relationship to the person who did cause the injury, and who himself was at fault, including through negligence. Legal relationships that can lead to vicarious liability include the relationship of employer and employee.
68. It is also possible to rely on the Constitution to seek redress against an individual for a breach of one’s constitutional rights. In Meskell v. CIE [1973] IR 121), the court stated:
“... if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right that person is entitled to seek redress against the person or persons who have infringed that right.”
Such a resort to constitutionally created torts only occurs if there is a gap in existing tort law which needs to be supplemented.
D. Relevant public investigations and child-protection developments
69. The Carrigan Committee was appointed in 1930 to consider whether certain criminal statutes needed amendments and to make proposals to deal with “the problem of juvenile prostitution”. It held seventeen sittings, heard twenty-nine witnesses and considered other written submissions.
70. On 20 August 1931 the Committee submitted its final report to the Minister for Justice. The report recommended a combination of social and legislative reforms as regards, inter alia, sexual crimes against minors.
71. The Police Commissioner was an important witness before the Committee. Prior to appearing, he submitted statistical information he had gleaned from responses to a circular issued by him to over 800 police stations about the prosecution of sexual offences from 1924 to 1930 including for the offences of “defilement, carnal knowledge or rape” of girls under 10 years of age, between 10 and 13, between 13 and 16, between 16 and 18 and over 18 years of age. He submitted a detailed analysis of those statistics noting, inter alia, that there was an “alarming amount of sexual crime increasing yearly, a feature of which was the large number of cases of criminal interference with girls and children from 16 years downwards, including many cases of children under 10 years of age”. He was of the opinion that less than 15% of sexual crime was prosecuted for various reasons including the reluctance of parents to pursue matters for various reasons.
72. On the advice of the Department of Justice (in a memorandum accompanying the report), neither the evidence before, nor the report of, the Carrigan Committee was published. In so advising, the Department of Justice criticised the report in several respects and noted that the obvious conclusion to be drawn from it was that the ordinary feelings of decency and the influence of religion had failed in Ireland and that the only remedy was by way of police action. The debate on the report took place in a parliamentary committee. Several recommendations were implemented including the adoption of the Criminal Law Amendment Act 1935 (see paragraph 63 above). The Department of Justice’s files on this report were published in 1991. Further archival material was released in 1999.
2. Reformatory and industrial schools
73. Reformatory schools were established in the 1850s and industrial schools in the 1860s. These schools were mainly denominational and State-funded. The former received young offenders but there were never more than a few of such schools. However, there were fifty or so industrial schools which were schools for the training of children: children were lodged, clothed and fed as well as taught (section 44 of the Children Act 1908). From 1936 to 1970, a total of 170,000 children and young persons (involving about 1.2% of the relevant age group) entered industrial schools. The average stay was approximately seven years. The great majority of children were committed to industrial schools because they were “needy” and the next most frequent grounds of entry were involvement in a criminal offence or non-attendance at school. Each of these grounds involved committal by the District Court. Section 7 of the Rules and Regulations for Industrial Schools 1933 provided that children’s literary instruction would be in accordance with the national-schools programme and set down recommended hours for both literary instruction and industrial training.
3. The Cussen and Kennedy Reports on reformatory and industrial schools
74. The Cussen Report, published in 1936, was commissioned by the State into the running of reformatory and industrial schools. The report endorsed the system contingent on its implementing fifty-one conclusions and recommendations. The system continued largely unchanged until a later committee, set up by the State and chaired by Justice Eileen Kennedy, surveyed these schools. The Kennedy Report was published in 1970, when the reformatory and industrial school system was already in decline. The closure of certain schools was recommended and other proposals for change were made. It found, notably, that the system of inspection had been totally ineffective and it recommended, together with other reporting mechanisms, the establishment of an independent statutory body to ensure the highest standards of child care and to act, inter alia, as a watchdog.
4. The Ryan Report on reformatory and industrial schools
75. Following public disclosures and controversies in the late 1980s and early 1990s about, notably, clerical child abuse in Ireland, the Prime Minister issued the following written statement on 11 May 1999:
“On behalf of the State and of all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue.”
76. The Commission to Inquire into Child Abuse Act 2000 was adopted (amended in 2005). A Commission (later known as the Ryan Commission) investigated and reported on child abuse (including sexual abuse) primarily in reformatory and industrial schools. Since there were relatively few reformatory schools, the Commission’s work principally concerned industrial schools.
77. The Commission’s mandate mainly covered the 1930s to 1970s, the period between the Cussen and Kennedy Reports. Evidence was collected over a period of nine years and included voluminous documentation, expert evidence and the testimony of around 1,500 complainants. The “Investigation Committee” heard evidence from witnesses who wished to have their allegations investigated whereas the “Confidential Committee” provided a private forum for witnesses to recount abuse suffered by them. The evidence to the latter committee was therefore unchallenged.
78. The Commission reported in May 2009 (“the Ryan Report”). It found that there had been widespread, chronic and severe physical, including sexual, abuse of children mainly by clergy in the reformatory and industrial schools. While the religious authorities managed cases of abuse so as to protect the congregations and minimise the risk of public disclosure, the report confirmed that they had reported complaints of sexual abuse of pupils by lay persons to the police. The Secretary General of the Department, in evidence to the Investigation Committee, regretted the significant failings in its responsibility to children in the reformatory and industrial schools: while those institutions were privately owned and operated, the State had a clear responsibility to ensure that the care children received was appropriate and the Department had not ensured a satisfactory level of care. Complaints of clerical child abuse were seldom reported to the Department itself and it had dealt inadequately with the complaints which were received.
79. Chapter 14 of Volume 1 (“the Brander Chapter”) examined the career of “a serial sexual and physical abuser” who was a lay teacher in around ten schools (including six national schools) for forty years ending in 1980. After retirement, he was convicted on numerous charges of sexual abuse of pupils. The report noted that, when parents had tried to challenge his behaviour in the 1960s and 1970s, he was protected by diocesan and school authorities and moved from school to school. Evidence was given of complaints to the police in the 1960s. Complaints to the Department in the early 1980s were ignored, an attitude which, as the Department accepted before the Commission, was impossible to defend even by the standards of the time. Not only was the investigation shocking in itself, but it illustrated “the ease with which sexual predators could operate within the educational system of the State without fear of disclosure or sanction”.
80. Volume III comprised the Report of the Confidential Committee which heard evidence of abuse from 1930 to 1990 from 1,090 persons about 216 institutions which comprised mainly reformatory and industrial schools but also included national schools. The Committee heard eighty-two reports of abuse from seventy witnesses in relation to seventy-three primary and second level schools: most concerned children leaving prior to or during the 1970s and sexual abuse was reported by over half of the witnesses. Contemporary complaints were made, inter alia, to the police and the Department. Certain witnesses emphasised the public, and therefore evident, nature of the sexual abuse.
81. Volume IV, Chapter 1, concerned the Department which had legal responsibility under the Children Act 1908 for children committed to the reformatory and industrial schools. The Department had insufficient information because its inspections were inadequate. Department officials were aware that abuse occurred and should have exercised more of the Department’s ample legal powers over the relevant schools in the interests of the children, such as the power to remove a manager. However, the Department made no attempt to impose changes that would have improved the lot of the children in those schools. Indeed:
“The failures by the Department ... [could] also be seen as tacit acknowledgment by the State of the ascendancy of the Congregations and their ownership of the system. The Department[‘s] Secretary General ... [stated] that the Department had shown a ‘very significant deference’ towards the religious Congregations. This deference impeded change, and it took an independent intervention in the form of the Kennedy Report in 1970 to dismantle a long out-dated system.”
82. Volume V contained copies of, inter alia, expert reports. Certain complainants had briefed a senior lecturer in Irish history, Professor Ferriter, to address the proposition that the State had only become aware, at a policy level, of the physical abuse of minors in the 1970s and of the sexual abuse of minors in the 1980s. The Commission took over as sponsor of his report and annexed it to its own report. Professor Ferriter’s report put the events before the Ryan Commission in their historical context. He described the Carrigan Report (1931) as a “milestone” as regards the provision of compiled information about the rate of prosecution of sexual crime in Ireland. He also provided and analysed later prosecution statistics (from the 1930s to the 1960s) drawn from criminal-court archives. The police had been quite vigorous in their prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the twentieth century in Ireland. Professor Ferriter went on to point out that the criminal-court archives demonstrated a “consistently high level of sexual crime directed against young boys and girls”. While most of those cases were not recorded in the media, he considered that the police had extensive contemporaneous knowledge of the existence of such crimes.
83. Volume V annexed a research report completed by Mr Rollison, requested by the Ryan Commission itself and entitled “Residential Child Care in England, 1948-1975: A History And Report”. He set out the history of residential school care in England during the period 1948 to 1975. Under the heading “Abuse”, Mr Rollison indicated that, prior to the mid-1980s, there was “little professional or adult sensitisation either to the word or to the possibility of abuse” and that it was “essential to avoid the trap and potential excesses” of judging this period by today’s standards.
84. The Ryan Report contained several recommendations. It was considered important, as a first step, for the State to admit that abuse of children occurred because of failures of systems and policy, of management and administration, as well as of senior personnel who were concerned with the reformatory and industrial schools. A series of other recommendations were made about the development and review of child-orientated State policies and services, about accountability, about the necessity for adequate and independent inspections of all services to children and for the fullest implementation of “Children First: National Guidelines for the Protection and Welfare of Children” (see paragraph 89 below).
5. Later reports on sexual abuse
85. Later public inquiries and reports criticised the response by the Catholic Church to allegations of child sexual abuse by the clergy.
86. The Ferns Report 2005 identified over 100 complaints of child abuse made between 1962 and 2002 against twenty-one priests of the Diocese of Ferns. The report criticised the response of the Church but referenced few complaints to the State authorities prior to or during the 1970s.
87. The Murphy Report 2009 concerned the handling by the Church and State of complaints of child abuse made between 1975 and 2004 against clergy of the Archdiocese of Dublin. The report accepted that child sexual abuse by clerics was widespread during the relevant period. While the need for child-protection legislation had been clearly recognised in the early 1970s, the legislative delay until the early 1990s was described as extraordinary.
88. In 1996 the Irish Catholic Bishops adopted a framework document entitled “Child Sexual Abuse: Framework for a Church Response”. The Cloyne Report 2011 examined the response of the Catholic Church authorities to complaints made to them about clerical sexual abuse after the framework document was adopted, a point at which those authorities could reasonably be considered to have been aware of the extent of the problem and of the manner of dealing with it. The report was highly critical of the response of the Church, even during this later period.
6. Additional child-protection developments
89. In November 1991 the Department issued guidelines on procedures for dealing with allegations or suspicions of child abuse (Circular 16/91). They were updated in 2001 (“Child Protection – Guidelines and Procedures”) and in 2006 (“Child Protection Guidelines and Procedures for Primary Schools”). 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 were to assist in the identification and reporting of child abuse and to improve professional practices in organisations providing services to children and families. The code has been updated since then, most recently in 2011. The Government have published the Children First Bill 2012 with a view to ensuring effective implementation of these guidelines.
90. The Ombudsman for Children was established in 2002 to promote public awareness of children’s rights. New and focused criminal offences were adopted including the offence of reckless endangerment of a child (section 176 of the Criminal Justice Act 2006). Various compensation schemes have been set up providing redress mainly to abuse victims from reformatory and industrial schools. The “children’s rights” referendum of 2012 led to the approval of the thirty-first amendment to the Constitution which proposes to insert provisions, orientated towards child rights and protection, into Article 42 of the Constitution. The amendment has not come into force pending litigation.
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
91. The Parliamentary Assembly of the Council of Europe (“PACE”) first made recommendations concerning child protection in 1969 with its Recommendation 561 entitled “Protection of Minors against ill-treatment”. Although primarily concerned with the beating of children in the home, it recommended that States be invited to “take all necessary measures to ensure that the competent ministries and departments are aware of the gravity and extent of the problem of children subject to physical or mental cruelty” and, further, to “request the official services responsible for the care of maltreated children to coordinate their action as far as possible with the work undertaken by private organisations”. Recommendation No. R (79) 17 of the Committee of Ministers on the protection of children against ill-treatment builds on this PACE Recommendation: governments were to take all necessary measures to ensure the safety of abused children “where the abuse is caused by acts or omissions on the part of persons responsible for the child’s care or others having temporary or permanent control over him”.
92. The European Social Charter 1961 provides in Article 7 that children and young persons have the right to special protection against physical and moral hazards to which they are exposed.
93. The Geneva Declaration of the Rights of the Child was adopted by the League of Nations in 1924 and emphasised, as a preamble to its five protective principles, that mankind owed to the child “the best that it had to give”. By unanimous vote in 1959, the General Assembly of the United Nations adopted its Declaration of the Rights of the Child extending the 1924 Declaration. This 1959 Declaration is prefaced by the general principle that a child, by reason of his physical and mental immaturity, needed special safeguards and care. Principle 2 provides that a child shall enjoy special protection and shall be given opportunities and facilities to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity, the best interests of the child being always paramount. Principle 8 provides that the child shall in all circumstances be among the first to receive protection and relief and Principle 9 states that the child shall be protected against all forms of neglect, cruelty and exploitation.
94. The Universal Declaration of Human Rights 1948 (UDHR) contains two Articles which expressly refer to children – Article 25 on special care and assistance and Article 26 on the right to free elementary education – as well as the catalogue of human rights which apply to all human beings including the right not to be subjected to cruel, inhuman or degrading treatment.
95. Article 24 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that “every child shall have, without any discrimination ... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”. Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESC) requires States to take steps, including legislating, to progressively realise the rights guaranteed by the Covenant. Article 10 of the ICESC consistently stipulates that special measures of protection and assistance should be taken on behalf of the young. Article 12 addresses the right of all to “the enjoyment of the highest attainable standard of physical and mental health”, and incorporates a specific provision under which States Parties are obliged to take steps for the provision for the healthy development of children. Both Covenants were opened for signature in 1966 and they were signed and ratified by Ireland in 1973 and 1989 respectively.
96. The Preamble to the 1989 United Nations International Convention on the Rights of the Child recalls, inter alia, the various child-protection provisions of the 1924 and 1959 Declarations, the UDHR, the ICCPR and the ICESC. Article 19 provides that the State shall protect the child from maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims.
97. The applicant complained that the State failed to protect her from sexual abuse by a teacher in her national school and that she did not have an effective remedy against the State in that regard. She relied on Article 3 (alone and in conjunction with Article 13), Article 8, Article 2 of Protocol No. 1 as well as these latter Articles taken in conjunction with Article 14 of the Convention.
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
98. The Government submitted that the Court should reconsider its admissibility decision arguing that the applicant had failed to exhaust domestic remedies, that she was no longer a victim of a violation of the Convention, that her application was out of time and, finally, that her complaints were manifestly ill-founded. The applicant rejected these submissions relying, inter alia, on the Chamber’s unanimous admissibility decision.
99. The Government maintained, in the first place, that the applicant had failed to exhaust effective domestic remedies. They disagreed with the Chamber that she was entitled to choose remedies when the result was that her core complaint to this Court was precisely the claim abandoned before the domestic courts. Since she did not appeal to the Supreme Court the order of the High Court to the effect that she had not established a case in negligence (the “non-suit” order), the State was deprived of the opportunity to contest the negligence claims, with its evidence, in the proper domestic forum. As a result, much controversial material had been opened before this Court without the necessary domestic court analysis. The Government were not suggesting that, having unsuccessfully pursued one remedy, she should have begun another but rather that she should not have abandoned at the High Court stage an appeal concerning her core complaint to this Court.
100. Secondly, if that non-suit order of the High Court that she had not established a case in negligence was clearly not appealable, the application should be rejected as out of time as it was not introduced within six months of that order which was dated 9 March 2004.
101. Thirdly, the Government maintained that the applicant could no longer claim to be a victim given the awards of damages to her by the CICT and by the High Court ( Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I; Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000 ‑ XI and Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 ‑ I). The CICT scheme was a reasonable and independent assessment of compensation for criminal damage which was drawn from public funds. If the applicant considered the CICT award inadequate, she should have taken an action in judicial review. That the CICT award was lower than that of the High Court did not mean it was inadequate: the higher award could be explained by additional information before the civil courts or by the differing elements comprising the respective awards. The interaction between the CICT award, the award against LH and any award by this Court was illustrated by the requirement to repay the CICT award if damages were received from the other two sources.
102. The Government also argued, albeit in the context of Article 13 of the Convention, that an effective remedy did not necessarily mean one in which the State was a defendant. They underlined that the Court did not find a breach of Article 13 in Costello-Roberts v. the United Kingdom (25 March 1993, § 27, Series A no. 247 ‑ C) as the applicant was able to sue the private school or its authorities for assault. They also relied on the sufficiency of the negligence action in Calvelli and Ciglio v. Italy (cited above). They considered Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001 ‑ V) to be distinguishable: that respondent Government had conceded that a negligence action was the only effective remedy but that that action did not lie against local authorities.
103. Finally, the Government maintained that the application was manifestly ill-founded.
104. The applicant considered she had exhausted all effective domestic remedies. Given the nature of her complaints, only a remedy which determined State liability and offered adequate compensation could be considered effective. As the Chamber found, she was entitled to choose the most feasible remedy against the State (vicarious liability for acts of LH) and she was not required to exhaust other remedies once that remedy was ultimately unsuccessful. She was then entitled to introduce her application within six months of the Supreme Court judgment and not, as the Government argued, within six-months of the High Court non-suit order.
105. The applicant maintained that she retained her victim status since there had been no recognition of State liability or adequate compensation from the State. She rejected the relevance of the case-law on which the Government relied: in the above-cited Caraher case, the applicant was no longer a victim because his civil action was against the State and Calvelli and Ciglio was a medical negligence case.
106. As to the CICT award, she pointed out that the Court had already found the similar system in the United Kingdom to be an inadequate means of establishing State responsibility: the CICT did not concern, let alone acknowledge, any liability of the State and, consistently, the award was ex gratia. She argued that the award was inadequate as demonstrated by the difference between it and the significantly greater civil award against LH (the core non-pecuniary award against LH was EUR 200,000 as well as EUR 100,000 in aggravated and exemplary damages and the non-pecuniary element of the CICT award was EUR 27,000). Judicial review of the CICT award stood no chance of success in which case she risked a heavy costs’ order against her: there had been approximately 5 such cases since 1982 and the scope of judicial review was too narrow to accommodate a simple disagreement over the amount of the award.
107. The case against LH, the applicant submitted, did not concern State liability and, while she had done all she could to recover the award against him, she had received only a small part of it. She had registered a judgment mortgage on his interest in the family home but, since the house was registered land, the registration of a judgment mortgage did not (at the time) sever the joint tenancy or therefore allow for the sale of the house. Moreover, where the property was a family home and the judgment mortgage related to one spouse only, an order for sale would not be given. In any event, it was not a satisfactory remedy if it required her to deprive an innocent third party of a family home.
108. It is recalled that, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it finds that it should have been declared inadmissible for one of the reasons outlined in the first three paragraphs of Article 35 of the Convention (for example, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003 ‑ III.
109. As regards the applicant’s exhaustion of domestic remedies, the Chamber retained the following relevant principle:
“... 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).”
110. The Chamber noted that the applicant’s core grievances concerned the State’s responsibility for the sexual assaults by LH as well as the availability of a civil remedy against the State in that respect. The Chamber therefore considered her pursuit of a claim alleging the State’s vicarious liability for LH to be a reasonable choice. It could not be said that the outcome of that action was clearly foreseeable since her action was a lead case in the domestic courts and since it ended with a majority judgment of the Supreme Court. If successful, that action could have addressed her essential grievances through a finding of State responsibility and an award of damages against the State. While the basis of State responsibility invoked domestically was different to that pursued before the Court, the Court’s case-law made it clear that the applicant had the right, consistently with Article 35, to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when the route reasonably chosen proved unsuccessful, to exhaust another remedy with essentially the same objective.
111. The Grand Chamber does not consider that the Government’s observations undermine the Chamber’s findings. Just as the established case-law of this Court entitles an applicant to choose one feasible domestic remedy over another, the applicant was entitled to devote resources to pursue one feasible appeal (vicarious liability) over another (a claim in negligence and/or a constitutional tort). The Grand Chamber re-affirms therefore the findings of the Chamber that the applicant fulfilled the exhaustion requirements of Article 35 of the Convention.
112. The Court has examined below, in the context of Article 13, whether the remedies not exhausted by the applicant could be considered, nevertheless, to be effective (paragraphs 179 and 183-186).
113. It also follows that the applicant was entitled to introduce the present application within six months of the final decision in the proceedings chosen, namely within six months of the Supreme Court judgment on vicarious liability of 19 December 2008. The application cannot therefore be dismissed as having been introduced outside of the time-limit fixed by Article 35 of the Convention.
114. As to the applicant’s victim status, the Chamber was of the view that this preliminary objection had to be joined to the merits of the complaint under Article 13 of the Convention. The Grand Chamber considers that it must examine this issue as a preliminary objection. However, even assuming that a damages award in her favour could take away the applicant’s victim status as the Government argued based on Caraher v. the United Kingdom (and related jurisprudence), the Grand Chamber considers that she can still claim to be a victim of a violation of the Convention as regards her complaints about the State’s failure to protect her or to provide her with an effective remedy in that respect.
115. The Court recalls that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (for example, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Where rights of such fundamental importance as those protected under Article 3 are at stake and where an alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 requires that there should be available to victims a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention and, furthermore, that compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies ( Z and Others v. the United Kingdom, cited above, § 109). An applicant’s victim status may also depend on the level of compensation awarded at domestic level, having regard to the facts about which the applicant complains before the Court (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 115 and 118, ECHR 2010).
116. As to the case-law relied upon by the Government to argue that a remedy addressing State liability was not a pre-requisite to effectiveness, the Court notes as follows. The present case is substantively different from Costello-Roberts : the applicant in the latter case essentially challenged the application by a teacher of the law (allowing corporal punishment) whereas the present applicant challenged the State’s failure to legislate to provide an adequate legal framework of protection. Calvelli and Ciglio concerned medical negligence so that a civil negligence action against doctors (and, potentially, disciplinary proceedings) was considered adequate for the purposes of the procedural aspect of Article 2 of the Convention. That the Government made concessions about domestic law in Z and Others does not change the Convention principles stated therein to the effect that, in a case such as the present, a remedy against the State was required.
117. However, the applicant has neither obtained acknowledgement of the Convention breach alleged nor adequate redress.
118. In the first place, neither LH’s criminal conviction nor the damages award against him concerned State responsibility. The CICT award, on which the Government relied, did indeed come from State funds and constituted compensation by the State to the applicant for criminal damage inflicted on her by a third party. However, it was made on an ex gratia basis and did not concern in any way, let alone acknowledge, any liability of the State. Consistently with this fact, the State is never a party to CICT proceedings ( Z and Others v. the United Kingdom, cited above, § 109; E. and Others v. the United Kingdom, no. 33218/96, § 112, 26 November 2002; and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003).
119. Secondly, while the High Court awarded over EUR 300,000 to the applicant she has only been able to recover from LH approximately 10%, of that award, even following enforcement proceedings. Given LH’s age, the level of monthly payments fixed and the fact that LH’s main asset is a family home, the prospects of recovering the rest of that award remain minimal. While the CICT award (EUR 54,000) included a non-pecuniary element (EUR 27,000), that was very substantially lower than the non-pecuniary damage assessed by the High Court at EUR 200,000 (for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 214-215, ECHR 2006 ‑ V). There being little evidence that the applicant’s CICT non-pecuniary award was unusual by CICT standards, it has not been demonstrated that a challenge, whether before the CICT panel or on judicial review, stood any chance of success.
120. For these reasons, and even if the Caraher line of case-law relied upon by the Government (see paragraphs 102 and 114 above) were to apply, the Grand Chamber considers that the applicant can still claim to be a victim of a failure by the State, contrary to Articles 3 and 13, to protect her from ill-treatment and to provide her with a domestic remedy in that respect.
121. Consequently, the Grand Chamber rejects the preliminary objections of the Government, with the exception of their argument that the applicant’s complaints are manifestly ill-founded as this objection must be joined to the merits of those complaints.
II. ALLEGED VIOLATION OF THE SUBSTANTIVE ASPECT OF ARTICLE 3 OF THE CONVENTION
122. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
123. The applicant’s core complaint was that the State had failed, in violation of its positive obligation under Article 3, to put in place an adequate legal framework of protection of children from sexual abuse, the risk of which the State knew or ought to have known and which framework would have countered the non-State management of national schools. There were no clear or adequate legal obligations or guidance for the relevant actors to ensure they acted effectively to monitor the treatment of children and to deal with any complaints about ill-treatment including abuse. 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, an obligation facilitated, but not required, by Article 42 of the Constitution.
124. Education was a national obligation ( McEneaney and Crowley, cited above), as it was in any advanced democracy. Article 42 of the Constitution was permissive so that the State could and should have chosen to provide education itself. Even if the State outsourced that obligation to non-State entities, the national-school model could and should have accommodated greater child-protection regulations. One way or the other, a State could not avoid its Convention protective obligations by delegating primary education to a private entity (see Costello-Roberts v. the United Kingdom [, 25 March 1993, Series A no. 247-C]). Finally, the State could not absolve itself by saying that the applicant had had other educational options which, in any event, she had not.
125. The applicant relied on certain material, notably the Carrigan and Ryan Reports, to substantiate her claim that the State either had, or ought to have had, knowledge of the risk of abuse of children in national schools. She pointed out that the Ryan Report had been published after nine years of investigation and after the Supreme Court judgment in her civil action. She also maintained that the State had or ought to have had knowledge of the fact that appropriate protective measures, including adequate monitoring and reporting mechanisms, were not in place to prevent such abuse. In short, she maintained that the abuse of national-school pupils was facilitated by the national-school model of primary education combined with a failure to put in place effective measures of protection to prevent and detect sexual abuse.
126. The measures, on which the Government relied, were inadequate and, indeed, the applicant considered they confirmed an absence of State control. The 1965 Rules and Circulars were neither primary nor secondary legislation; their legal basis was unclear; they were so numerous and overlapping that the extent to which they remained in force was also unclear; and they were not readily available to the public. In any event, those Rules and Circulars were not effective: there was no reference to sexual abuse, no procedure for complaining about abuse and no binding requirement to monitor, investigate or report abuse to a State authority. The point of contact for the parents remained the manager. Whether or not action would have been taken on foot of a complaint to the State, the absence of an effective detection and complaints procedure meant that complaints were not passed on to the State.
127. The applicant also considered that the system of inspection could have protected children from abuse, but did not. It was designed to ensure the quality of teaching and not to control the conduct of teachers or to receive complaints of abuse. Accordingly, parents considered themselves obliged to complain to the manager and, indeed, the Guidance Note of 6 May 1970 directed them to do so. There was no relationship between the inspector and the parents, either in principle or practice and none of the guidelines or circulars referred to any contact between parents and inspectors. The inadequacy of the State system of inspection was, in the applicant’s opinion, established by, inter alia, the Ryan Report, by a comparison with the extensive child-protection guidelines which have been adopted since then and by the facts of the present case. In this latter respect, there had been 400 instances of abuse since the mid-1960s in Dunderrow National School by L.H. and not one related complaint to an inspector.
128. More generally, the applicant pointed out the stark contrast between the State’s detailed pleadings in her domestic action – where it claimed to have no control, knowledge or role in school management or as regards teachers’ conduct or propensities and where it laid full responsibility squarely on the patrons and managers – and the State’s position before this Court – where it is argued that there was a clear legal framework of State protection in place.
129. Finally, the causation test was set out in E. and Others v. the United Kingdom, [no. 33218/96], §§ 98-100[, 26 November 2002]). The applicant submitted that, had there been an effective reporting mechanism, the 1971 complaint would have been reported and there was therefore more than a “real prospect” that the 1973 abuse would not have happened.
130. The Government endorsed the Supreme Court’s description of the development and structure of the Irish primary-education system adding that it existed when the Irish State was created in 1922 and was maintained with the enactment by the people of Article 42 of the Irish Constitution in 1937. Dunderrow National School was therefore owned, operated and managed by the Catholic Church and its representatives. L.H. was not a State employee but was employed by the manager who, in turn, managed the school on behalf of the patron. This was not a technical bureaucratic distinction but a real “ceding” of the ownership and management of schools to denominations. This situation suited the majority 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. The suggestion that primary education was a national enterprise to be entirely State run in an advanced democratic State stemmed from a particular ideological outlook that was not necessarily shared by all Contracting States and not by Ireland. They pointed to the fact that no legislation obliged a child to attend a national school as the law allowed other schooling options.
131. As regards the substantive complaint about a failure to protect under Article 3, the Government argued that the liability of the State was not engaged. The case of Van der Mussele v. Belgium (23 November 1983, Series A no. 70) was distinguishable because there was no question of “delegation” of obligations since Article 2 of Protocol No. 1 only required States to ensure that no one was denied an education. The above-cited Costello-Roberts case was different because corporal punishment was part of a disciplinary system and therefore within the ambit of education whereas L.H.’s behaviour was “the very negation” of a teacher’s role. State responsibility for criminal offences unrelated to securing a Convention right was therefore limited to an operational obligation to protect (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII) and there was no evidence that the State knew or ought reasonably to have known in 1973 of a real risk of a teacher abusing a pupil or of L.H. abusing the applicant.
132. As to what the State actually knew, the Government noted that neither the documents disclosed in discovery, nor the evidence of the inspector of Dunderrow National School, to the High Court indicated that the State authorities had received any complaint about L.H.’s behaviour.
133. Nor could it be said that the State ought to have been aware of a risk of sexual abuse of children by teachers in national schools in the 1970s. It was fundamental to assess the question of the State’s constructive knowledge without the benefit of hindsight: in 1973 awareness of the risk of child abuse was almost non-existent and standards could not be retrospectively imposed on the early 1970s on the basis of today’s increased knowledge and standards. The core question was what ought to have been the perceived risk of sexual abuse of children by teachers in primary schools in Ireland in the early 1970s and the answer was none. The Government pointed out the reference by Hardiman J to the different ethos which existed in the 1970s which explained why no parent had made a direct complaint to the State authorities at the relevant time. The Government relied also on the research paper entitled “Residential Child Care in England, 1948-1975: A History And Report” annexed to the Ryan Report. The applicant herself had presented no evidence to the domestic courts as to the level of awareness of risk in the 1970s and, indeed, her own expert (Professor Ferguson) considered that there was no evidence to support the need for preventative strategies in the early 1970s. The Carrigan Report did not assist her: while it contained some information about an increase in sexual crime and indicated that the police were active in prosecuting such crimes against young girls, there was no suggestion that a girl was at risk in school from a teacher. While the Government accepted that the Department had mishandled a complaint about Mr Brander, one could not extrapolate from this a constructive knowledge on the part of the State in the 1970s of a general risk to children from sexual abuse in schools. Once the State had a relevant awareness and understanding of the issues, relevant guidelines were introduced.
134. In any event, domestic law contained effective protective mechanisms commensurate with any risks which could have been perceived at the time. The actions of L.H. were offences in the criminal law and, indeed, as soon as complaints were made to the police in the mid-1990s, a full criminal investigation was carried out and L.H. was convicted and imprisoned. The civil law of tort provided grounds for a civil action against L.H. and the religious authorities.
135. The 1965 Rules also provided protection. These were legal rules which clearly bound a teacher and a manager and which clearly set out how to make and pursue a complaint. The Government relied, in particular, on Rules 121 and 130, which set down standards for teachers conduct, as well as Rule 108 and the Guidance Note of 6 May 1970 as regards mechanisms to deal with teachers who did not conduct themselves properly. Moreover, the inspector’s role was, inter alia, to report to the Minister on the quality of the system and, notably, on whether the 1965 Rules were being complied with and to ensure an “appropriate standard of education” in all primary schools. In addition, each manager, teacher and parent had a role in protecting children and each could have made, but did not make in the applicant’s case, a complaint directly to an inspector, the Minister, the Department or to the police. Any such complaint would have led to relevant inquiries and investigations, and, as appropriate, a sanction such as the withdrawal by the Minister of a teacher’s licence to teach. The real problem was that no use was made of the procedures which existed: the earlier complaint about L.H. was made to the manager and not to a State authority.
136. In sum, the Government argued that there were safeguards in place commensurate with any risk of which the State ought to have been aware at the time, that constructive knowledge ought to be assessed from the point of view of the 1970s and without the benefit of hindsight and, notably, without imposing today’s knowledge and standards on a forty-year-old context.
B. The third parties’ submissions
1. The Irish Human Rights Commission (“the IHRC”)
137. The IHRC was established by statute in 2000 to promote and protect the human rights of everyone in Ireland and it has its origins in the Good Friday Agreement of 1998. It has already intervened as a third party in cases before the Court.
138. The IHRC noted, inter alia, the positive obligations to prevent treatment contrary to Article 3 including a more general duty to structure the primary-education 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 arose 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 1965 Rules was unclear. The Rules were unclear about an inspector’s role as regards a teacher’s conduct and, while the Rules addressed “improper conduct” by teachers, they did not define this or indicate any process whatsoever for dealing with it. Since private fee-paying schools and home schooling were not options accessible to the vast majority of Irish parents, rendering 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.
2. The European Centre for Law and Justice (ECLJ)
139. The ECLJ describes itself as a non-governmental organisation dedicated mainly to the defence of religious liberty. It has previously intervened as a third party in cases before this Court. The ECLJ focused on the question of whether the State could be considered responsible for the abuse by L.H. of the applicant.
140. 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. This system did not create hierarchical relationships between the State and the school and its 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.
141. 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 making criminal and civil proceedings available in the early 1970s.
142. Since the State was required neither by domestic law nor the Convention to take on the day-to-day management of primary education, the State was not responsible for the acts of a primary-school teacher. To suggest that it was responsible for not preventing the acts of a teacher would amount to imposing strict liability. 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.
143. The relevant facts of the present case took place in 1973. The Court must, as the Government stressed, assess any related State responsibility from the point of view of facts and standards of 1973 and, notably, disregard the awareness in society today of the risk of sexual abuse of minors in an educational context, which knowledge is the result of recent public controversies on the subject, including in Ireland (see paragraphs 73 ‑ 88 above).
1. The applicable positive obligation on the State
144. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see X and Y v. the Netherlands, 26 March 1985, §§ 21-27, Series A no. 91; A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI; Z and Others v. the United Kingdom, [no. 29392/95], §§ 74-75[, ECHR 2001 ‑ V]; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 109, 10 October 2002; and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII).
145. Moreover, the primary-education context of the present case defines to a large extent the nature and importance of this obligation. The Court’s case-law makes it clear that the positive obligation of protection assumes particular importance in the context of the provision of an important public service such as primary education, school authorities being obliged to protect the health and well-being of pupils and, in particular, of young children who are especially vulnerable and are under the exclusive control of those authorities (see Grzelak v. Poland, no. 7710/02, § 87, 15 June 2010, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012).
146. In sum, having regard to the fundamental nature of the rights guaranteed by Article 3 and the particularly vulnerable nature of children, it is an inherent obligation of government to ensure their protection from ill-treatment, especially in a primary-education context, through the adoption, as necessary, of special measures and safeguards.
147. Furthermore, this is an obligation which applied at the time of the events relevant to this case, namely in 1973.
The series of international instruments adopted prior to this period, summarised at paragraphs 91 to 95 above, emphasised the necessity for States to take special measures for the protection of children. The Court notes, in particular, the ICCPR and the ICESC which were both opened for signature in 1966 and signed by Ireland in 1973, although both were ratified in 1989 (see paragraph 95 above).
In addition, this Court’s case-law confirmed, as early as in its fifth judgment, that the Convention could impose positive obligations on States, and it did so in the context of Article 2 of Protocol No. 1 concerning the right to education (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, § 3, Series A no. 6). The formulation used in Marckx v. Belgium (13 June 1979, § 31, Series A no. 31) to describe the positive obligations under Article 8 to ensure a child’s integration into a family, has been often cited (notably, in Airey v. Ireland, 9 October 1979, pp. 30-31, § 25, Series A no. 32). Most pertinently, the seminal case of X and Y v. the Netherlands, cited above, found that the absence of legislation criminalising sexual advances to a mentally handicapped adolescent meant that the State had failed to fulfil a positive obligation to protect the Article 8 rights of the victim. In so concluding, the Court rejected the Government’s argument to the effect that the facts were “exceptional” and that the legislative gap was unforeseeable. The respondent State should have been aware of a risk of sexual abuse of mentally handicapped adolescents in a privately run care home for children and should have legislated for that eventuality. Those cases concerned facts prior to or contemporaneous with those of the present application.
It is, of course, true that the Court has further elucidated the breadth and nature of the positive obligations on States since those early cases. However, this is considered to be mere clarification of case-law which remains applicable to earlier facts without any question of retroactivity arising (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 140, ECHR 2009).
148. As to the content of the positive obligation to protect, the Court observes that effective measures of deterrence against grave acts, such as those in issue in the present case, can only be achieved by the existence of effective criminal-law provisions backed up by law-enforcement machinery (see X and Y v. the Netherlands, cited above, § 27; as well as, for example, Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009; Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III; and M.C. v. Bulgaria, cited above, § 150). Importantly, the nature of child sexual abuse is such, particularly when the abuser is in a position of authority over the child, that the existence of useful detection and reporting mechanisms are fundamental to the effective implementation of the relevant criminal laws (see Juppala v. Finland, no. 18620/03, § 42, 2 December 2008). The Court would clarify that it considers, as did the Government, that there was no evidence before the Court of an operational failure to protect the applicant (see Osman, cited above, §§ 115-16). Until complaints about L.H. were brought to the attention of the State authorities in 1995, the State neither knew nor ought to have known that this particular teacher, L.H., posed a risk to this particular pupil, the applicant.
149. The Court also notes that it is not necessary to show that “but for” the State omission the ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, cited above, § 99).
150. It is indeed the case, as emphasised by the applicant, that a State cannot absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals (see Costello-Roberts, cited above, § 27; see also, mutatis mutandis, Storck v. Germany, no. 61603/00, § 103, ECHR 2005 ‑ V). However, that does not mean that the present case challenges, as the Government suggested, the maintenance of the non-State management model of primary education and the ideological choices underlying it. Rather, the question raised by the present case is whether the system so preserved contained sufficient mechanisms of child protection.
151. Finally, the Government appeared to suggest that the State was released from its Convention obligations since the applicant chose to go to Dunderrow National School. However, the Court considers that the applicant had no “realistic and acceptable alternative” other than attendance, along with the vast majority of children of primary-school-going age, at her local national school (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 8, Series A no. 48). Primary education was obligatory (sections 4 and 17 of the School Attendance Act 1926) and few parents had the resources to use the two other schooling options (home schooling or travelling to attend the rare fee-paying primary schools), whereas national schools were free and the national-school network was extensive. There were four national schools in the applicant’s parish and no information was submitted as to the distance to the nearest fee-paying school. In any event, the State cannot be released from its positive obligation to protect simply because a child selects one of the State-approved education options, whether a national school, a fee-paying school or, indeed, home schooling (see Costello-Roberts, cited above, § 27).
152. In sum, the question for current purposes is therefore whether the State’s framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse, of which risk it could be said that the authorities had, or ought to have had, knowledge in 1973.
2. Was the positive obligation fulfilled?
153. It was not disputed that the applicant was sexually abused by L.H. in 1973. L.H. pleaded guilty to several sample charges of sexual abuse of pupils from the same national school. He did not defend the applicant’s civil action and the Supreme Court accepted that L.H. had abused her. The Court also considers, and it was not contested, that that ill-treatment fell within the scope of Article 3 of the Convention. In particular, when the applicant was nine years of age and for around six months, she was subjected to approximately twenty sexual assaults by L.H. who, as her teacher and school principal, was in a position of authority and control over her (see, for example, E. and Others v. the United Kingdom, cited above, § 89).
154. There was also little disagreement between the parties as to the structure of the Irish primary-school system, although they disputed the resulting liability of the State under domestic law and the Convention.
155. The respective roles of religious communities and the State in Irish primary education have been consistent from the early nineteenth century to date. The State provided for education (set the curriculum, licenced teachers and funded schools) but most primary education was provided by national schools. Religious bodies owned national schools (as patrons) and managed them (as managers). As pointed out by Hardiman J, the management of national schools by religious bodies was not just an authorisation by the State to take part in the provision of primary education but rather it was a “ceding” of the running of national schools to the denominational actors and to their interests, which bodies were interposed between the State and the child. The Minister for Education did not, therefore, have any direct or day-to-day management or control of national schools (see paragraphs 35 and 40 above). As observed by Hardiman J and Fennelly J in the Supreme Court, the denominations expressed their firm wish to retain that national-school model of primary education and their control of that system. Since the purpose of the denominations was to ensure that their ethos was reflected in the schools, national schools developed into a predominantly denominational system: accordingly, a Catholic-managed national school generally referred to a Catholic manager (usually the local parish priest) with Catholic teachers and pupils (see Hardiman J and Fennelly J, at paragraphs 31-32 and 43 above).
156. This national-school model was carried over through independence in 1922 and was foreseen and facilitated by the text of Article 42 § 4) of the Constitution adopted in 1937. By the early 1970s, national schools represented 94% of all primary schools. Approximately 91% of those national schools were owned and managed by the Catholic Church, although the percentage of primary-school children catered for in Catholic ‑ managed national schools was likely to be higher.
157. Accordingly, in the early 1970s, the vast majority of Irish children under the age of 12 or 13 attended, like the applicant, their local national school. As Hardiman J and Fennelly J of the Supreme Court noted, national schools were educational institutions owned and managed by, and in the interests of, a non-State actor, to the exclusion of State control. It was, moreover, a non-State actor of considerable influence on, in particular, pupils and parents and one resolved to retain its position.
158. This model of primary education appears to have been unique in Europe. The Supreme Court recognised this, describing the system as one which was entirely sui generis, a product of Ireland’s unique historical experience.
159. Parallel to the maintenance by the State of this unique model of education, the State was also aware of the level of sexual crime against minors through the enforcement of its criminal laws on the subject.
160. The Irish State maintained laws, or adopted new laws, after independence in 1922 specifically criminalising the sexual abuse of minors including sections 50 and 51 of the Offences Against the Person Act 1861 (as amended) and the Criminal Law Amendment Act 1935 (“the 1935 Act”). Such acts also constituted common-law offences of indecent and ordinary assault.
161. Moreover, the evidence before the Court indicates a steady level of prosecutions of sexual offences against children prior to the 1970s. It has noted, in particular, the detailed statistical evidence provided by the Police Commissioner to the Carrigan Committee as early as 1931 (see paragraph 71 above). Based on information he had gathered from 800 police stations in Ireland, he concluded that there was an alarming amount of sexual crime in Ireland, a feature of which was the large number of cases concerning minors including children under 10 years of age. Indeed, this witness considered prosecutions to represent a fraction of the offences actually taking place. Drawing a causal connection between the frequency of assaults on children and the impunity expected by abusers, the Committee’s report recommended legislative changes and more severe punishments leading to the adoption of the 1935 Act which, inter alia, created certain sexual offences as regards young girls. Professor Ferriter’s report, sponsored by the Ryan Commission and annexed to its report (see paragraph 82 above), analysed the statistical evidence of prosecutions gathered from criminal-court archives covering the period after the Carrigan Report and until the 1960s. In his report, he concluded, inter alia, that those archives demonstrated a high level of sexual crime directed against young boys and girls. Lastly, the Ryan Report also evidenced complaints made to State authorities prior to and during the 1970s about the sexual abuse of children by adults (see paragraphs 78-81 above). While that report primarily concerned industrial schools where the programme was different from national schools and where the resident children were isolated from families and the community (see the description of industrial schools at paragraph 73 above), these earlier complaints still amounted to notice to the State of sexual abuse by adults of minors in an educational context. In any event, the complaints to the State prior to and during the 1970s recorded in Volume III of the Ryan Report concerned, inter alia, national schools (see paragraph 80 above).
162. The State was therefore aware of the level of sexual crime by adults against minors. Accordingly, when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware, given its inherent obligation to protect children in this context, of potential risks to their safety if there was no appropriate framework of protection. This risk should have been addressed through the adoption of commensurate measures and safeguards. Those should, at a minimum, have included effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body, such procedures being fundamental to the enforcement of the criminal laws, to the prevention of such ill-treatment and, more generally therefore, to the fulfilment of the positive protective obligation of the State (see paragraph 148 above).
163. The first mechanism on which the Government relied was a reporting process outlined in the 1965 Rules and the Guidance Note of 6 May 1970 (see paragraph 62 above). However, none of the material submitted referred to any obligation on a State authority to monitor a teacher’s treatment of children and none provided for a procedure prompting a child or parent to complain about ill-treatment directly to a State authority. On the contrary, those with complaints about teachers were expressly channeled to the non-State denominational manager by the text of the Guidance Note of 6 May 1970 on which the Government relied. If a parent had been hesitant to bypass a manager (generally a local priest as in the present case) to complain to a State authority, the relevant rules would have discouraged them from doing so.
164. The second mechanism invoked was the system of school inspectors governed also by the 1965 Rules as well as by Circular 16/59 (see paragraph 61 above). However, the Court notes that the principle task of inspectors was to supervise and report upon the quality of teaching and academic performance. There was no specific reference, in the instruments on which the Government relied, to an obligation on inspectors to inquire into or to monitor a teacher’s treatment of children, to any opportunity for children or parents to complain directly to an inspector, to a requirement to give notice to parents in advance of an inspector’s visit or, indeed, to any direct interaction between an inspector and pupils and/or their parents. The rate of visits by inspectors (see paragraph 61 above) did not attest to any local presence of relevance. Consistently with this fact, the Government did not submit any information about complaints made to an inspector about a teacher’s ill-treatment of a child. As pointed out by Hardiman J in the Supreme Court, the Minister (via his inspectors) inspected the schools for their academic performance but it did not go further than that: the Minister was deprived of the direct control of the schools because the non-State manager was interposed between the State and the child (see paragraph 35 above).
165. The Court is therefore of the view that the mechanisms on which the Government relied did not provide any effective protective connection between the State authorities and primary-school children and/or their parents and, indeed, this was consistent with the particular allocation of responsibilities in the national-school model.
166. The facts of the present case illustrate, in the Court’s opinion, the consequences of this lack of protection and demonstrate that an effective regulatory framework of protection in place before 1973 might, “judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered” by the present applicant (see E. and Others v. the United Kingdom, cited above, § 100). There were over 400 incidents of abuse concerning L.H. since the mid-1960s in Dunderrow National School. Complaints were made in 1971 and 1973 about L.H. to the denominational manager but, as the Supreme Court accepted, the manager did not bring those complaints to the notice of any State authority. The inspector assigned to that school made six visits from 1969 to 1973 and no complaint was ever made to him about L.H. Indeed, no complaint about L.H.’s activities was made to a State authority until 1995, after L.H. had retired. Any system of detection and reporting which allowed such extensive and serious ill-conduct to continue for so long must be considered to be ineffective (see C.A.S. and C.S. v. Romania, no. 26692/05, § 83, 20 March 2012). Adequate action taken on the 1971 complaint could reasonably have been expected to avoid the present applicant being abused two years later by the same teacher in the same school.
167. Finally, Professor Ferguson’s letter, on which the Government relied, was not an expert investigation report but rather pre-litigation advice and thus inevitably also concerned with issues such as chances of success and costs exposure. The comments of Professor Rollison, on which the Government also relied, were directed to the state of awareness of the risk of sexual abuse in the United Kingdom whilst the issue before the Court requires a country-specific assessment.
168. To conclude, this is not a case which directly concerns the responsibility of L.H., of a clerical manager or patron, of a parent or, indeed, of any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in national schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment.
The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary-education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (national schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational managers (see paragraph 163 above). The consequences in the present case were the failure by the non-State manager to act on prior complaints of sexual abuse by L.H., the applicant’s later abuse by L.H. and, more broadly, the prolonged and serious sexual misconduct by L.H. against numerous other students in that same national school.
169. In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection to the effect that this complaint was manifestly ill-founded.
III. ALLEGED VIOLATION OF THE PROCEDURAL ASPECT OF ARTICLE 3 OF THE CONVENTION
170. The applicant argued that the State had also failed to investigate properly or provide an appropriate judicial response to an arguable case of ill-treatment. She maintained that the lack of effective detection and reporting mechanisms meant that the 1971 complaint about L.H. was not reported and led to a long delay before a criminal investigation and L.H.’s conviction.
171. The Government argued that sufficient procedures existed in 1973 but that no complaint had been made to a State actor until 1995. At that point, the State fulfilled its procedural obligations: police investigations took place, L.H. was convicted, an award was made by the Criminal Injuries Compensation Tribunal, the applicant’s civil action against L.H. was successful and her civil action in negligence against the State failed on evidential grounds only.
172. The Court reiterates the principles outlined in C.A.S. and C.S. v. Romania (cited above, §§ 68-70) to the effect that Article 3 requires the authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals, which investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. That investigation should be conducted independently, promptly and with reasonable expedition. The victim should be able to participate effectively.
173. The existence of adequate detection and reporting mechanisms has been examined above in the context of the positive obligations of the State under the substantive aspect of Article 3 of the Convention. Thereafter, the procedural obligations arise once a matter has been brought to the attention of the authorities (see C.A.S. and C.S. v. Romania, § 70, with further references therein). In the present case, once a complaint about the sexual abuse by L.H. of a child from Dunderrow National School was made to the police in 1995, the investigation opened. The applicant was contacted for a statement which she made in early 1997 and she was referred for counselling (see, for example, C.A.S. and C.S. v. Romania, § 82). L.H. was charged on 386 counts of sexual abuse involving twenty-one pupils from Dunderrow National School. L.H. pleaded guilty to twenty-one sample charges. He was convicted and imprisoned. It is not clear from the submissions whether the applicant’s case was included in the sample charges: however, she did not take any issue with the fact that L.H. was allowed to plead guilty to representative charges or with his sentence. Any question concerning her inability to obtain recognition of, and compensation for, the State’s failure to protect falls to be examined below under Article 13 of the Convention taken in conjunction with Article 3.
174. For these reasons, the Court finds that there has been no violation of the procedural obligations of the State under Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH THE SUBSTANTIVE ASPECT OF ARTICLE 3