Child sex abuse survivor challenges his exclusion from State compensation scheme

A survivor of historical child sexual abuse has launched a High Court challenge against his exclusion from a State scheme that provides compensation for people abused at schools they attended.

Represented by senior counsel James O’Reilly, the man is one of more than a dozen people taking similar actions over their exclusion from the scheme because they did not bring damages claims against the State before a date in July 2021.

The man, who cannot be named for legal reasons, was sexually abused by a member of a religious order who was his teacher in primary school during the 1970s.

In 2017 his abuser, Christian Brother James Tracey, was jailed for 3½ years after being found guilty by juries at the Circuit Criminal Court of committing sexual assaults on the man and other boys.

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The man had sued the Christian Brother order seeking damages for the abuse he suffered. However, he did not sue the State, due to rulings by the Irish court in a case brought by Louise O’Keeffe who was abused by her teacher, Leo Hickey, in the 1970s.

She had claimed that the Department of Education was responsible for the abuse she suffered, as it paid the teachers’ wages and pension, supervised the school and inspected its classrooms. It denied her claim.

While she lost before the High and Supreme courts in 2014, the European Court of Human Rights (ECHR) ruled in her favour.

Arising out of the ECHR decision in her action, a scheme to compensate those abused at school was established by the State and revised in 2021. The scheme was to provide payments of up to €84,000 to people sexually abused at a recognised day school before November 1991.

In July 2023, the man unsuccessfully applied to the revised scheme for compensation.

He was told he did not qualify because he had not brought civil proceedings against the State parties before July 2021.

He claims this requirement is illogical, unfair and inconsistent with decisions of the Irish courts.

He wanted to join the State to his civil action against the Christian Brothers, but he did not because of opposition from the State and due to Irish court decisions.

He unsuccessfully appealed the refusal to allow him to access the scheme.

He has now brought High Court judicial review proceedings against the Minister for Education, the Government of Ireland, Ireland and the Attorney General seeking orders setting the refusal aside.

He claims the provision in the 2021 revised scheme requiring a claim to be brought against the State before July of that year is discriminatory, unreasonable, in breach of the rule of law, unconstitutional and in breach of the European Convention on Human Rights.

The man seeks various orders and declarations from the High Court including an order quashing the provision of the revised scheme that requires applicants to have brought legal claims against the State prior to July 2021.

The matter came before Ms Justice Niamh Hyland, who on a ex parte basis granted the man permission to bring his challenge. The matter will return before the court later this year.

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