EHRM, 28-01-2014, nr. 35810/09

On 29 September 1998 the applicant instituted a civil action against LH, 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 LH. Her claim against the latter three defendants (‘the State Defendants’) was threefold:

Since LH did not file a defence, on 8 November 1999 the applicant obtained judgment in default against him. On 24 October 2006 the High Court assessed and awarded damages payable by LH in the sum of EUR 305,104: EUR 200,000.00 in general damages; EUR 50,000.00 in aggravated damages; EUR 50,000.00 in exemplary damages; and EUR 5,104.00 in special damages. The applicant took enforcement proceedings, LH 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 region of EUR 31,000 to date. She registered a judgment mortgage against that part of the family home owned by LH.

As regards her case against the State Defendants, she requested 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.

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

When the applicant's case concluded, the State Defendants applied for a direction striking-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.

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 LH 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.

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 LH 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 LH, although he refused to accept that the State was vicariously liable for the Manager.

The appeal was heard on 11–13 June 2006. By a majority judgment of 19 December 2008 (Hardiman and Fennelly JJ, with whom Murray CJ and Denham J concurred and Geoghegan J dissenting), the Supreme Court dismissed the appeal.

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 19^th 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.

Hardiman J went on to describe as ‘remarkable’ the fact that, whilst in 19^th 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:

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/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.

The Constitution reflected, Hardiman J explained, 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 3000 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.

He noted that, in recent times and after more than a century and a half, the provision of education was belatedly and, at least, partially placed on a statutory basis 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.

As to what could be gleaned from the 1965 Rules, Hardiman J noted:

Hardiman J observed that the sexual abuse of a pupil was the negation of what LH 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 their estates or successors.

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 LH, long since ceded to the Manager and the Patron, prevented a finding against the Minister. The relationship of LH 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:

Hardiman J commented on two of the applicant's original claims which had ‘not been proceeded with’.

As to the claim of negligence by the State, he remarked that:

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:

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

Fennelly J, who delivered the other majority judgment, began by noting that the calamity of the exploitation of authority over children so 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.

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.

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 LH or, for the same reasons, for the failure of the Manager to report the 1971 complaint to the State. LH was not employed by the State but, in law, by the Manager. While LH 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, LH was not engaged by the State and the State could not dismiss him.

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 ‘For 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-named defendant.’

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 of 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 relying, 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.

By 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.

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

The Court refers to the description of the history and structure of National Schools system of primary education provided by the Supreme Court in the present case (O'Keeffe v. Hickey, [2008] IESC 72) and, notably, by Hardiman and Fennelly JJ (paragraphs 30–35 and 42–44 above).

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, such excuses including the fact that the child was receiving suitable primary education elsewhere, that there was no National School accessible to which the parent did not object on religious grounds or that the child was prevented from attending by some other sufficient cause. Attendance at full-time education was therefore compulsory for all children between 6 and 14 years until 1969 when the official school-leaving age was increased to 16 years. Primary education has been universally free in Ireland since the nineteenth century.

The vast majority of primary school-going children attended ‘National Schools’ which are State-financed and denominational-run primary education establishments. Department reports for 1972–1973 and 1973–1974 recorded the existence of 3776 and 3688 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 of 1962/63, 91% of National Schools were Catholic run and catered for 97.6 % of National School pupils and 9% were Protestant run, catering for 2.4% of such pupils. A 2011 Report of the Department notes that approximately 96% of primary schools remained under denominational patronage and management (including 89.65 % under Catholic patronage and management).

In 1963/1964 there were 192 fee-paying non-State-aided primary schools for approximately 21,000 children which represented about 4–4.5% of all primary school pupils. The vast majority of these schools were in urban areas, the great majority of which were in Dublin.

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/multi-denominational schools.

Article 42 is entitled ‘Education’ and reads as follows:

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).

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/privately managed nature of primary education, making no fundamental structural changes thereto.

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 ([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).

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)).

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 moral 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.

Most primary schools now have Boards of Management. A Ministerial circular (16/76) fixed 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. The Boards are bodies corporate with perpetual succession so the Boards could sue and be sued.

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 the Minister 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 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.

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' 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/reduce salary. As noted above, the Manager could dismiss a teacher, subject to the Minister's approval.

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 17 sittings and heard 29 witnesses and considered other written submissions.

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.

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 offence of ‘Defilement, Carnal Knowledge or Rape’ of girls under 10 years of age, between 10–13, between 13–16, between 16–18 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’. He opined that less than 15% of sexual crime was prosecuted for various reasons including the reluctance of parents to pursue matters for various reasons.

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 (paragraph 63 above). The Department of Justice's files on this Report were published in 1991. Further archival material was released in 1999.

Reformatory schools were established in the 1850s and industrial schools in the 1860s. These schools were mainly denominational-managed and State-funded. The former received young offenders but there were never more than a few of such schools. However, there were 50 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.

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 51 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 the establishment of an independent statutory body to ensure the highest standards of child care and to act, inter alia, as a watchdog as well as other reporting mechanisms.

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:

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) in essentially reformatory and industrial schools. Since there were relatively few reformatory schools, the Commission's work concerned principally industrial schools.

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 1500 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.

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.

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 10 schools (including 6 National Schools) for 40 years ending in 1980. After retirement, he was convicted on numerous charges of sexual abuse of pupils. The Report noted that, when parents tried to challenge his behaviour in 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 in early 1980s to the Department were ignored, an attitude 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’.

Volume III comprised the Report of the Confidential Committee which heard evidence of abuse from 1930–1990 from 1090 persons about 216 institutions which concerned mainly reformatory and industrial schools but also included National Schools. The Committee heard 82 reports of abuse from 70 witnesses in relation to 73 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 underlined the public, and therefore evident, nature of the sexual abuse.

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 abuse occurred and should have exercised more of its 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 detained children. Indeed:

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 (1930s–1960s) drawn from criminal court archives. The police had been quite vigorous in its prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the 20^th century in Ireland. He 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.

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 1948–1975. 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.

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: The National Guidelines for the Protection and Welfare of Children’ (paragraph 89 below).

Later public inquiries and reports criticised the response by the Catholic Church to allegations of child sexual abuse by the clergy.

The Ferns Report 2005 identified over 100 complaints of child abuse made between 1962 and 2002 against 21 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.

The Murphy Report 2009 concerned the handling by the Church and State of complaints of child abuse made between 1975–2004 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.

In 1996 the Irish 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.

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.

The Ombudsman for Children was established in 2002 to promote public awareness of children's rights. New and focussed 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 31^st 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.

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.

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.

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.

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.

Finally, the Government maintained that the application was manifestly ill-founded.

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.

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.

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.

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.

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.

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 have 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 (Costello-Roberts v. the United Kingdom). Finally, the State could not absolve itself by saying that the applicant had other educational options which, in any event, she had not.

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 underlined that the Ryan Report was published after 9 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 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.

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 to 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.

The applicant also considered that the system of Inspectors could have, but did not, protect children from abuse. 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 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 were 400 instances of abuse since the mid-1960s in Dunderrow National School by LH and not one related complaint to an Inspector.

More generally, the applicant underlined 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/Managers — with the State's position before this Court — where it is argued that there was a clear legal framework of State protection in place.

Finally, the causation test was set out in E. and Others v. the United Kingdom, cited above, §§ 98–100). 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.

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. LH 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 underlined that no legislation obliged a child to attend a National School as the law allowed other schooling options.

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 Costello Roberts case was different because corporal punishment was part of a disciplinary system and therefore within the ambit of education whereas LH'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 (Osman v. the United Kingdom, 28 October 1998, Reports 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 LH abusing the applicant.

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 LH's behaviour.

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 underlined the reference by Hardiman J to the different ethos which existed in 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.

In any event, domestic law contained effective protective mechanisms commensurate with any risks which could have been perceived at the time. The actions of LH 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 LH was convicted and imprisoned. The civil law of tort provided grounds for a civil action against LH and the religious authorities.

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 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 LH was made to the Manager and not to a State authority.

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 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 40 year-old context.

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 had already intervened as a third party in cases before the Court.

The IHRC noted, inter alia, the positive obligations to prevent treatment contrary to Article 3 including a more general duty to structure the primary educational system in such a way as to protect children, which obligations could not be avoided by delegating a public service function to a private body. In this context, the IHRC considered that a serious question 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.

The ECLJ described 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 focussed on the question of whether the State could be considered responsible for the abuse by LH of the applicant.

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/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.

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.

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.

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 (X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, §§ 21–27; A. v. the United Kingdom, 23 September 1998, Reports 1998-VI, § 22; Z and Others v. the United Kingdom, cited above, §§ 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).

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 (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).

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.

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 91–95 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 (paragraph 95 above).

In addition, this Court's case-law confirmed, as early as 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 (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 the Marckx case (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, § 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 (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).

As to the content of the positive obligation to protect, the Court recalls that effective measures of deterrence against grave acts, such as at issue in the present case, can only be achieved by the existence of effective criminal-law provisions backed up by law enforcement machinery (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 (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 (Osman v. the United Kingdom, at §§ 115-16). Until complaints about LH were brought to the attention of the State authorities in 1995, the State neither knew nor ought to have known that this particular teacher, LH, posed a risk to this particular pupil, the applicant.

It is also recalled 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 (E. and Others v. the United Kingdom, cited above, § 99).

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 (Costello-Roberts v. the United Kingdom, 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.

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 (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), 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 (Costello-Roberts, cited above, § 27).

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.

It was not disputed that the applicant was sexually abused by LH in 1973. LH 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 LH 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 20 sexual assaults by LH 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).

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.

The respective roles of religious communities and the State in Irish primary education have been consistent since the early 19^th 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 (Patrons) and managed them (Managers). As underlined 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 (paragraphs 35 and 40 above). As underlined by Hardiman and Fennelly JJ 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 and Fennelly JJ, at paragraphs 31–32 and 43 above).

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.

Accordingly, in the early 1970s, the vast majority of Irish children under the age of 12/13 years attended, like the applicant, their local National School. As Judges Hardiman and Fennelly 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.

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.

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.

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.

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 (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 severer 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 (paragraph 82 above), analysed the statistical evidence of prosecutions gathered from criminal court archives covering the period after the Carrigan Report and until 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 (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 (paragraph 80 above).

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 (paragraph 148 above).

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 (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 would have been hesitant to by-pass a Manager (generally a local priest as in the present case) to complain to a State authority, the relevant rules discouraged them from doing so.

The second mechanism invoked was the system of School Inspectors governed also by the 1965 Rules as well as by Circular 16/59 (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 (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 (paragraph 35 above).

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.

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 (E and Others v. the United Kingdom, cited above, § 100). There were over 400 incidents of abuse concerning LH since the mid-1960s in Dunderrow National School. Complaints were made in 1971 and 1973 about LH 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 6 visits from 1969 to 1973 and no complaint was ever made to him about LH. Indeed, no complaint about LH's activities was made to a State authority until 1995, after LH 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 (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.

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.

To conclude, 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 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 (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 LH, the applicant's later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in that same National School.

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.

The Government argued that the applicant should have pleaded the State's vicarious liability for the Patron and/or Manager. However, the Government mainly relied on two other remedies. In the first place, they referred to an action claiming that the primary education system, foreseen by Article 42 of the Constitution, breached her unenumerated constitutional right to bodily integrity (the constitutional tort action). Secondly, they argued that she could have continued her claim in negligence in her appeal to the Supreme Court arguing that the State failed to structure the primary education system so as to protect her from abuse. This was her complaint under Article 3 of the Convention. The High Court had summarily dismissed (‘non-suited’) her claims because she failed to adduce any evidence: indeed, her own expert (Professor Ferguson, paragraph 24 above) had advised her against litigating on the basis of a lack of relevant awareness of risk on the part of the State. It was therefore disingenuous to argue that she should now be excused from appealing because she had been non-suited on evidential grounds. In any event, the Government maintained that certain domestic case-law indicated that a non-suit on evidential grounds was appealable and, further, that she could have appealed the non-suit because the High Court gave no clear reasons for that decision and because it failed to address her negligence claim separately.

The applicant maintained that she had pleaded, in her domestic action, the State's vicarious liability for the Patron and/or Manager. She also disputed the effectiveness of the other two remedies against the State on which the Government relied. The High Court's dismissal of the constitutional tort claim was unappealable. The State's protection for the unenumerated constitutional right to bodily integrity was implemented through the law of tort and there was no discrete action for damages for breach of the constitutional right to bodily integrity. Neither would the negligence action have been effective. She was non-suited at first instance and, although no reasons were given, it was clearly because her evidence did not demonstrate a prima facie case of negligence. However, she did not have the resources to carry out the necessary investigation, the extent of which was demonstrated by the enormous State resources later required by the Ryan Commission's investigation and report (paragraph 77 above). An appeal against an evidential finding of the High Court was unlikely to succeed whether or not one applied the case-law on which the Government relied.

The IHRC did not consider the constitutional tort remedy to be effective. In particular, it pointed out that, while the courts had, in theory, endorsed the idea of fashioning remedies for alleged breaches of constitutional rights (Byrne v. Ireland [1972] IR 241, p. 281; and Meskill v. Ireland [1973] IR 121), the same courts tended to avoid replacing existing statutory and common-law remedies with a separate constitutional remedial regime so that the constitutional courts relied on existing remedies such as tort (W v. Ireland (no. 2) ([1999] 2 IR 141). The IHRC submitted that this was precisely what occurred in this case: to dispose of the constitutional claim against the State it was sufficient to direct the applicant to a remedy in tort for breach of her rights to bodily integrity/privacy. However, the nature of the tortious relationship (negligence/vicarious liability) defined the State's obligations/liabilities rather than the possibly broader duty of the State to vindicate the rights of a child in the public education system. This, in turn, raised the question of whether the private law remedy in tort was adequate to protect the substance of the applicant's constitutional rights not least because the private law remedy focused on the State's conduct rather than on the applicant's rights.

The Court is not persuaded that any of the remedies against the State has been shown by the Government to be effective in the present case.

In the first place, the Supreme Court rejected the State's vicarious liability for the acts of LH, who was a lay teacher with a salary funded by the State. The State's vicarious liability for the Patron and/or Manager, who were clerics not paid by the State, must be considered to have been even less likely. Consistently, Fennelly J noted that there could be no State liability for the Manager since he was not employed by the State (paragraph 45 above).

Secondly, a claim against the State in direct negligence would require the recognition, inter alia, of a relationship between the State and the applicant of such proximity as to give rise to a duty of care on the part of the State to the applicant (paragraph 66 above). However, the interposition of the denominational managers to the exclusion of State control in National Schools would appear to be incompatible with the existence of any such duty of care (see also Hardiman J at paragraphs 35 and 39 above).

Thirdly, the Government argued that the applicant should have maintained her constitutional tort claim before the Supreme Court (paragraph 180 above). However, even if the Supreme Court would not have directed her to existing tort remedies as the High Court did, the Government have not demonstrated, with relevant case-law, how the State could be held responsible for a breach of her constitutional right to bodily integrity because of a system which was specifically envisaged by Article 42 of the Constitution. Whether or not this ground was properly pleaded before the Supreme Court, it remains relevant to note that Hardiman J of the Supreme Court rejected it (paragraph 40 above).

The applicant claimed EUR 223,000 in non-pecuniary damage: the High Court award of EUR 250,000 (general and aggravated damages) less the CICT non-pecuniary award of EUR 27,000 and assuming that reimbursement of the CICT award would not be sought by the State. She referred to medical and psychiatric evidence before the High Court as to the impact on her of the sexual abuse by LH. Having regard to the nature of the abuse, its duration and impact on her, she considered that the breach of Article 3 had to be considered as extremely serious. She also claimed EUR 5104 in pecuniary loss, being the sum vouched by her before, and awarded by, the High Court as special damages. This award comprised past and future medical, travel and other expenses related to the sexual abuse suffered by her. The applicant accepted that the CICT award, as well as the money already recovered by her from LH, amounted to partial reparation.

The Government argued that the applicant's claims for pecuniary and non-pecuniary loss were not properly itemised or substantiated and they considered that there was no causal link between the violation established and any damage. The Government did not propose a sum for non-pecuniary damage but they challenged the applicant's reliance, without more, on the High Court non-pecuniary damages award. That reliance was misplaced (as it was an award concerning LH's actions and not the State) and insufficient (the High Court award was uncontested by LH). The applicant had obtained some payments to date, she had a range of enforcement mechanisms available to her against LH and the State was not responsible for LH's finances. The Government also highlighted the CICT award funded by the State and noted that the applicant accepted the relevance of that award for any just satisfaction award. The Government similarly challenged the applicant's reliance, as regards her pecuniary claim to this Court, on the High Court's award of special damages.

The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate.

If the Court finds a violation of an important Convention right which has led to significant pain and suffering, it may award a sum in non-pecuniary damages (for example, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 269, ECHR 2012).

As regards pecuniary loss, there must be a clear causal connection between the damage claimed and the violation of the Convention established. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum) may be prevented by the inherently uncertain character of the damage flowing from the violation but an award can be made: the question is the level of just satisfaction, in respect of both past and future pecuniary losses, which it is necessary to award, the matter to be determined by the Court at its discretion, having regard to what is equitable (E. and Others v. the United Kingdom, cited above, §§ 120–121).

The Court has taken note of the evidence accepted by the High Court as to the applicant's past and future pecuniary losses (comprising mainly past and future medical and psychiatric treatment expenses) and of the sum of EUR 5104 awarded in that respect. Moreover, having regard to the nature of the serious ill-treatment to which the applicant was subjected, the Court considers that she has suffered non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation of the Convention. While there is a distinction to be made between the awards made domestically not concerning State liability and the present complaint focussing on State liability, the Court considers that any award under Article 41 should take account of the High Court award (EUR 305,104 in total) as well as the extent to which that award has been, and will be, paid by LH. Account must also be taken of the CICT award paid to the applicant (EUR 53,962.24), assuming that it will not have to be reimbursed. Both awards had pecuniary and non-pecuniary elements.

Having regard to the financial compensation received by the applicant to date and in light of the uncertainties about any future payments by LH, the Court has decided to award a global figure for pecuniary and non-pecuniary damage. On an equitable basis therefore, the Court awards the sum of EUR 30,000 in total as regards pecuniary and non-pecuniary loss, plus any tax that may be chargeable.