This article considers the implications of O’Keeffe judgment in the context of the Irish education system
The relationship between Irish Law and the European Convention on Human Rights (the “Convention”) and the distinction between the Convention and EU law will be briefly considered. The facts of the case and its outcome in the Irish Courts will be outlined as will the relevant sections of the judgment of the European Court of Human Rights (“ECtHR”). The article will then consider in detail the implications of the judgment for the Irish education system regarding child protection safeguards, the role of the Teaching Council, current models of provision, the role of the Inspectorate, redeployment panels and boards of management. A number of conclusions are offered.
The relationship between the Convention and Irish Law
The Convention is an international treaty and countries that have signed up to it agree to protect human rights. The Convention is international law and is not, per se, binding in Irish domestic law. However, parts of the Convention were adopted into Irish legislation in the European Convention on Human Rights Act 2003 which allows inter alia a claim to be made that an organ of the State has failed to perform its functions in a manner compatible with the State’s obligations under the Convention.
The ECtHR is an International Court established by the Convention. It hears applications alleging that a contracting State has breached human rights protected by the Convention. An application can be made once all domestic remedies have been exhausted eg in the case under discussion, Louise O’Keeffe (the “Applicant”) had to take her case to the High Court and the Supreme Court before she could lodge a complaint with the ECtHR. The Convention provides that contracting States undertake to abide by the Court’s final decision.
While judgments of the Court are binding on the State concerned, rulings of the ECtHR are not binding on Irish Courts. The 2003 Act provides that judicial notice of such decisions should be taken and when interpreting and applying the provisions of the Convention, due account must be taken of the “principles laid down” in such decisions. This means that, in the case in hand, the State will have to comply with the judgment insofar as it relates to the Applicant, but Irish Courts are not bound to follow the case in other cases.
Contrast with EU Law
Frequently there is confusion between the ECtHR and the European Court of Justice (“ECJ”). The ECJ decides cases on European Union (“EU”) Law, ie it derives from membership of the EU. EU law is directly effective in Ireland and in the event of a disparity EU law takes precedence over Irish law.
Outline of the facts of the case
The Applicant attended Dunderrow National School (“NS”). The Manager of the school, acting on behalf of the Patron who was the Bishop of Cork and Ross, was a local priest. Dunderrow NS had two teachers, one of whom (“LH”) was the school’s principal.
In 1971, a parent of a child complained to the Manager that LH had sexually abused her child. This was not reported to the Gardai, the Department of Education (the “Department”) or to any other State authority and was not acted on by the Manager.
From January to mid-1973 the Applicant was subjected to sexual assaults by LH. In September 1973, other parents made allegations concerning LH. Following a meeting of parents chaired by the Manager, LH went on sick leave. In September 1973 he resigned from his post in the school. The allegations were not reported at the time to the Gardaí, the Department or any other State authority. In January 1974 the Manager notified the Department that LH had resigned and named his replacement. Soon afterwards LH took up a position in another National School where he taught until he retired in 1995.
Between 1969 and 1973, the Department Inspector visited the school on six occasions. No complaint about LH was made to him. He observed the teaching work of LH and considered it satisfactory.
In 1996 the Applicant was contacted by the Gardaí who were investigating a complaint made in 1995 by a former pupil of Dunderrow NS against LH. She made a statement to the Gardaí in January 1997. In 1998 LH pleaded guilty to 21 sample charges and was sentenced to imprisonment. His licence to teach was withdrawn by the Minister for Education.
Court proceedings in Ireland
The Applicant instituted High Court Proceedings against LH, the Minister, Ireland and the Attorney General claiming damages for personal injuries on the basis of:
- Negligence: in failing to put in place appropriate measures and procedures to protect and cease the systematic abuse.
- Vicarious liability: on the basis that the relationship between the State Defendants and LH was one of employment.
- Breach of Constitutional rights: bodily integrity and the State’s responsibility for education under Article 42 of the Irish Constitution.
LH did not file a defence and the Applicant obtained judgment against him. In 20061 the High Court delivered its judgment and held that the State was not vicariously liable for the sexual assaults perpetrated by LH, given the relationship between the State and the management of National Schools. It also held that no action lay for breach of constitutional rights. The Applicant appealed to the Supreme Court, her only ground of appeal related to the finding regarding vicarious liability. Her appeal was unsuccessful.
Judicial commentary in the Supreme Court
Observations made by the Supreme Court Judges, regarding the system of education in Ireland and the question of the State’s liability, are noteworthy:
Hardiman J noted that the arrangements for National School education might “seem rather odd today” in that State authorities paid for the system of national education “but did not manage it or administer it at the point of delivery”. He stated in relation to vicarious liability “The Minister can hardly be responsible for a failure to ‘cease’ a course of action of whose existence he was quite unaware”. Regarding the Constitution he concluded “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 initiative’, to ‘provide for free primary education’”.
Fennelly J endorsed the description of the legal status of primary schools as “not a State system” but rather a “State-supported system”. He also stated that even though LH had to have the qualifications laid down by the Minister and observe the 1965 Rules for National Schools, and while the State had disciplinary powers in those respects, LH was not engaged by the State and the State could not dismiss him.
However, Geoghegan J, in his dissenting judgment, noted that most primary education in Ireland took the form of a joint enterprise of Church and State. He considered the relationship was such, that there was a sufficient connection between the State and the creation of the risk, to render the State liable. He examined in detail the role of school inspectors and noted 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 the teacher’s licence to teach.
Complaint to the ECtHR
The ECtHR held that the State failed to fulfil its positive obligation to protect the Applicant from the sexual abuse and that there had been a violation of her rights under Article 3 of the Convention which states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
The ECtHR noted that the obligation under Article 3 is a positive obligation on States. It indicated that it is be interpreted in such a way as not to impose an excessive burden and accordingly, not every risk of ill-treatment could entail 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.
Based on the observations of the Court, the obligations on the State are significant and are not limited to the implementation of reporting mechanisms. The Court seems to envisage a role for the State in detecting abuse. It found the State liable regarding information which it felt the state ought to have had. It stated that as there had been no complaint about LH’s activities to a State authority until 1995, which was after LH 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”.
‘Positive obligation of Protection’ – Primary School context
There is a particular obligation on the State regarding what the Court described as the positive obligation of protection for pupils in primary schools2.
The Court stated that the context of the case, defined to a large extent, the nature and importance of the positive obligation of protection and that it assumed particular importance, in the context of the provision of an important public service, such as, primary education. It stated that a State cannot absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals.
It is clear therefore that there are particular obligations on the State in terms of primary and special schools.
Even though the issue of the right to education was not considered by the Court, as the Court placed particular emphasis on the obligations of the State in terms of primary education, questions could arise regarding access to education and resources. The Convention states “the State shall respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions”. In view of the reference to “philosophical convictions”, questions arise regarding the lack of greater diversity in school provision by the State.
That this is a matter for the State and not private providers is evident as the Court stated “…this is not a case which directly concerns the responsibility of LH, of a clerical manager or Patron, of a parent or, indeed, of any other individual … Rather, the application concerns the responsibility of the State”.
Another issue which arises is the allocation of resources to pupils with special educational needs. There have been successive cuts to teaching resources for these pupils. As these resources have been specifically assessed for the individual pupils, an issue could arise regarding a potential denial of the right to education. While all education sectors have endured funding cuts, it is arguable that primary should be insulated to a greater degree.
ECtHR comments regarding the issue of child protection
The Court pointed out that 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 detection and reporting mechanisms is fundamental to the effective implementation of the relevant criminal laws.
It clarified that there was no evidence before it, of an operational failure to protect the Applicant, as the State neither knew nor ought to have known that LH, posed a risk to this particular pupil, until complaints were brought to the attention of the State authorities in 1995.
However, the Court noted that parallel to the maintenance by the State of what it described as a “unique model of education”, the State was also aware of the level of sexual crime against minors though the enforcement of its criminal laws3. The Court concluded that when relinquishing control of education to non-State actors, the State should also have been aware of potential risks to safety, if there was no appropriate framework and safeguards for the detection and reporting of any ill-treatment by and to a State controlled body.
It is clear from the foregoing that there is a particular responsibility on the State regarding child protection safeguards for schools. As was referred to in the judgment, Child Protection Procedures for Primary and Post Primary Schools are in place. This is a significant improvement compared with the situation which pertained in 1973. However, the Court noted that none of the material submitted to it, 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. It stated that on the contrary, those with complaints about teachers were expressly channelled to the manager. It noted that if parents were hesitant to by-pass a Manager, to complain to a State authority, the relevant rules discouraged them from doing so.
The Department’s Children First Implementation Plan for the Education Sector 2013 states that a secure register/database of all child protection concerns reported to the Department is kept by its Schools’ Division which is updated when the Department is notified of an assessment or investigation. It also states that Child Protection concerns are referred by the Department to the Board of Management of the school and to the HSE.
It is not clear whether the foregoing is sufficient in terms of the ECtHR’s requirement of monitoring by a State Agency. In light of this, the Department’s internal procedures and the Child Protection Procedures should be reviewed. The latter provide that a complaint should be directed to the designated liaison person, ie an employee of the school, who if s/he considers it appropriate, reports the matter to the Child and Family Agency. Whether this and the Department’s internal procedures constitute a complaint directly to the state authority and/or fulfils the State’s positive obligation of protection is questionable.
In any event, the Child Protection Procedures need to be updated to incorporate the relevant provisions of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012. As neither this Act nor the developments in case law, have been incorporated into the Procedures, it is conceivable that schools which comply with the Procedures, will be breaching legal requirements. This is something which requires urgent action, particularly as the Department’s notifications to schools state that matters must be dealt with in accordance with the Procedures. The failure to revise the Procedures, means that most schools are likely to be unaware of the 2012 Act, thus an important element of the detection of abuse by State authorities, ie reporting to the Gardaí, is potentially being missed.
Role of the Teaching Council
Monitoring of teachers regarding child protection matters, is handled by schools under the Child Protection Procedures, which also contain a reporting mechanism to the Child and Family Agency. Thereafter, if appropriate, the matter is investigated under the statutory disciplinary procedures which schools are required to use.
The Minister previously had a role4 regarding individual teachers. This is no longer the case as the statutory disciplinary procedures state that they “supersede all disciplinary procedures in existence prior to this agreement” which presumably includes Rule 108.
It seems to be the case that it is envisaged that the monitoring of teachers is now a role for the Teaching Council as it was established to inter alia regulate the professional conduct of teachers. The Teaching Council Act 2001 states that the Council may, subject to the consent of the Minister, prescribe the information to be furnished by an employer to the Council where a teacher is dismissed or resigns. However the information to be passed to the Teaching Council has not yet been prescribed. In addition Part V of the Act which deals with fitness to teach, has not yet been commenced. Once Part V is commenced the Teaching Council will have power to remove an unfit teacher from the register. As the Teaching Council Act has to be amended before Part V is commenced, it is not clear how this function will align with the statutory disciplinary procedures used by schools.
This raises serious issues regarding a potential lacuna resulting from the failure to prescribe information or to commence Part V as well as the fact that Rule 108 in not operative. To take an example, if an individual school takes disciplinary action against a teacher regarding a child protection matter, which results in dismissal, there is no mechanism for a State Authority to investigate and to prevent that teacher from teaching in another school, which is what occurred in the case in hand.
While robust recruitment procedures could help to prevent this, this puts the responsibility at school level, rather than with the State, which is what the ECtHR found wanting. Equally an issue could arise if a member of teaching staff leaves a school to teach in another school while a disciplinary procedure is on-going. Presumably the amended legislation/prescribed information will elucidate when a disciplinary matter involving an individual teacher should be referred to the Teaching Council, particularly when it involves a child protection matter.
The ECtHR noted that even though the need for child protection legislation had been clearly recognised in the early 1970s, this was delayed until the 1990s. The Court described this delay as “extraordinary”. Presumably it would consider it even more extraordinary that a regulatory body has been left waiting over 13 years for the power to perform its functions. An additional issue which merits consideration is the lack of a particular State body with regulatory powers regarding non-teaching members of staff, clearly the Teaching Council’s role is limited to teachers. At the very least, there is an urgent need to commence the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, particularly as it makes provision for so-called “soft information”, it requires scheduled organisations5 to notify specified information and makes provision for retrospective vetting. The Act would also provide a clear statutory basis for vetting. In addition, the passing into law of the Children First Bill 2012 is urgent so that the procedures regarding child protection have a statutory basis.
Current model of provision
The Court noted that the model of primary education appeared to be unique in Europe and that this had been recognised by the Supreme Court, as a product of Ireland’s unique historical experience.
The Court however make it clear that contrary to the argument suggested by the State, the case did not challenge 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 was whether the system, so preserved, contained sufficient mechanisms of child protection.
As referred to above, the right to an education could conceivably place an obligation on the State to make greater provision for diversity.
Role of Inspectorate
When a school is undergoing a Whole School Evaluation (WSE) compliance with the Child Protection Procedures is assessed by the Inspectorate. These inspections involve about 10% of schools annually. There are meetings with the members of the school community, including representatives of parents. Parents are also asked to complete a questionnaire. However there is no provision for a parent to make an individual complaint to an inspector nor is there provision for an inspector to monitor the conduct of an individual teacher6. The Court seemed to suggest that this should be an option
Another question relates to schools which come within the ambit of the Inspectorate. The Court stated “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”. While the inspectorate does have a role regarding home schooling, the question which now arises is whether it should also have a role regarding fee paying primary schools7.
Redeployment Panels have been in place for some time. Panels were initially established by the School Patrons and the Unions in the 1930s. While the Department did not operate these panels it endorsed their use in Circulars and in the Rules for National Schools. A permanent teacher8 who is surplus to requirements in one school is redeployed to another school rather than being made redundant. Schools with vacancies are required to employ teachers from the panel. In 2012 there was a very significant change as the redeployment panels, were placed on a statutory footing. The Education (Amendment) Act 2012 provides that a teacher or other member of staff, who is remunerated out of monies provided by the Oireachtas, may be redeployed to another recognised school in accordance with redeployment procedures determined from time to time by the Minister and following consultation with the education partners.
Throughout the judgment, the ECtHR made reference to the fact that LH was not appointed by the Minister. However, in view of 2012 Amendment Act, it could be argued that the relationship between the State, schools and their employees has been fundamentally altered, especially in view of the fact that schools are no longer free to select their employees in the vast majority of cases. It could also be argued that as far back as 1998, the relationship had changed, in view of the provisions in the Education Act 1998. It should be emphasised that these changes have come about as a result of changes to domestic law and not as a result of the ECtHR decision. This change to domestic law, means that if a similar matter was not to come before the High and Supreme Court, the judicial comments could be very different to those referred to above.
Associated issues arise regarding the question of where legal liability lies when there are concerns regarding the competence/conduct of teachers who have been redeployed.
Boards of Management
As the judgment was directed at the State, the implications are for the State rather than for Boards of Management. Obviously in matters of child protection, it is essential that schools adhere to the Child Protection Procedures and legal requirements. In this context it is unfortunate that the 2011 Child Protection Procedures have not been updated, as outlined above.
The ECtHR placed a significant obligation on the State regarding the positive obligation of protection of children in the primary school system. Essentially it held that the State was liable for something which it did not know but which it should have known. The Irish State can take some comfort in measures it has introduced over the years regarding child protection, however, it could well be the case that the failure to commence a number of pieces of legislation and/or failure to update the 2012 Procedures in a timely fashion may lead to questions regarding whether the positive obligation of protection of children in the primary school system is currently being fulfilled.
The State has taken a much more interventionist approach to schools in recent years. The Education (Amendment) Act 2012 has greatly enhanced the powers of the Minister including the power to determine recruitment and redeployment procedures. While these measures were no doubt introduced for administrative ease, at a time of national crisis, it could be that the unintended effect is that the State could now be deemed to be the employer of staff in schools. Finally the “Children’s Rights” Referendum 2012 led to the approval of the 31st amendment to the Constitution which pending the outcome of litigation, will insert provisions on the rights of the child into the Constitution. Once this litigation has concluded, the State could find that its positive obligation of protection has been even further amplified.