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Minister for Education Norma Foley TD has today (Wednesday 21 July) announced that government has approved the reopening of a revised ex gratia scheme for the implementation of the European Court of Human Rights Judgement in O’Keeffe v Ireland.
The decision comes on foot of a detailed review of the scheme in consultation with the office of the Attorney General.
The ex gratia scheme was first opened in July 2015 following the judgment by the ECHR in respect of the case taken by Ms Louise O’Keeffe against the State. The scheme was put in place to provide an opportunity to apply for an Ex Gratia award for those who had instituted legal proceedings against the State in respect of their abuse in a day school and subsequently discontinued those proceedings following the rulings against O’Keeffe in the High Court and the Supreme Court, and prior to the judgement of the ECHR in the Louise O’Keeffe case.
The scheme was paused in 2019 following a report from retired High Court Judge Iarfhlaith O’Neill who as Independent Assessor reviewed a number of unsuccessful applications to the Scheme. Payments were made to 16 individuals following his determinations.
The Independent Assessor also asserted that the criteria to qualify for a payment were too restrictive for this group of applicants, specifically the requirement to provide evidence of a prior complaint against their abuser.
Minister Foley said:
“I want to first of all to extend an apology to all victims of abuse and in particular to Louise O’Keeffe who has rightfully received a full apology on behalf of the State. Protecting children from harm should be the foremost ambition in any society and many children were failed in this respect in the past in this country.
“I also want to emphasise that Ireland takes its obligations to the European Court of Human Rights extremely seriously and the revised terms of the Scheme should remove any doubt about Ireland’s ongoing commitment to implement the ruling in full.
“I am confident that the criticisms identified by Judge O’Neill have been addressed through amended criteria and introducing a wider range of evidence to be accepted for applicants to demonstrate that there was a real prospect of mitigating against the harm that they suffered and that they fall within the terms of the scheme. This will ensure that the revised scheme offers a fairer, broader and more sensitive option to applicants.”
As such, under the revised scheme in order to receive an ex gratia payment of €84,000 applicants must demonstrate that:
• they were sexually abused while a pupil at a recognised day school and that this occurred before November 1991 in a primary school or June 1992 in a post-primary school when the Guidelines for Procedures for Dealing with Allegations or suspicions of Child Abuse were introduced in schools and that;
• had the Guidelines for Procedures for Dealing with Allegations or Suspicions of Child Abuse been in place at the time the sexual abuse occurred, there would have been a real prospect of altering the outcome or mitigating the harm suffered by them as a result.
The original group that were eligible to apply to the Scheme can now apply or reapply to the redesigned Scheme, provided that they have not already received an ex gratia payment.
As well as the changed criteria, the type and nature of evidence that will be considered by the State Claims Agency in respect of individual applications will make it considerably easier for an applicant to demonstrate that they fall within the terms of the European Court ruling.
The scheme will also be opened to those who may have issued proceedings against the State at a later date than the limited cohort eligible for the first iteration of the scheme – in other words those who have filed details of their claim in the relevant Court office on or before 1 July 2021.
An applicant whose application is rejected by the scheme administrator can appeal that decision to an independent Appeals Officer, who will be appointed from a specially constructed panel.
The scheme is now open with full details available here.
The objectives of the revised Scheme are:
• To ensure that the establishment and scope of the revised Scheme addresses the Article 13 rights arising from the ECtHR ruling for a group of people who discontinued their legal proceedings following the judgments of the High Court and/or Supreme Court and whose circumstances are encompassed by the ECtHR ruling on O’Keeffe.
• In so doing, to allow the State to fully meet its obligations to the ECtHR following the reopening of the Scheme with an Action Report to be submitted in 2022.
• To ensure that the establishment and scope of the revised Scheme is consistent with both the ECtHR ruling and the relevant aspects of the decision of the Independent Assessor.
The Ex Gratia Scheme is administered by the State Claims Agency (SCA).
Where a person has previously settled with the State for a sum which is less than the €84,000 award under this Scheme, that person can now apply to the State Claims Agency for the difference up to the limit of €84,000.