Legal issues raised remain unclear

Because it was settled out of court, the implications of the McColgan case are more psychological, social and financial than …

Because it was settled out of court, the implications of the McColgan case are more psychological, social and financial than legal or political. The fact that it was settled means that there was no judgment, and therefore no legal precedent has been set on the issues which were raised in the course of the trial.

The first of these was the question of the Statute of Limitations. The health board and the doctor had claimed that the case could not be brought because it was more than three years since the plaintiff, Sophia McColgan, had reached the age of majority and thereby acquired the legal ability to take a case.

Her lawyers argued that she was in no mental state to even disclose the abuse let alone instruct solicitors to take a case.

As the experts in child sex abuse explained to the court, the victims of this kind of abuse would rarely be in a state to take action on their abuse. The out-of-court settlement means that Mr Justice Johnson has not had an opportunity to rule on this point, so future victims will, unless there is a change in the law, also face the problem of the Statute of Limitations.

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At the moment there are a number of exceptions, one of which is that the person was "of unsound mind". According to Kieran McGrath, editor of The Irish Social Worker, it would be an outrageous injustice if a victim was deprived of the opportunity of taking action by a too-narrow definition of this exception.

Again because the case was settled, it has not been possible to identify what went wrong within the health board, and between the health board and the doctor.

The fact that the board had to pay substantial damages means that health workers have a potential liability if they had knowledge of certain activities and failed to act, according to a lawyer with experience of medical litigation.

"If you can get £40,000 for abnormal hearing, what can you get for having your life damaged?" asked Kieran McGrath. "Every child who was ever in care, every child who thinks they should have been in care, every child who was adopted, every women who gave her child up for adoption, could say they should have been better looked after."

One thing that the case does not do is strengthen the arguments in favour of mandatory reporting. There were numerous reports from social workers, gardai, priests and teachers of the physical abuse suffered by Gerard. The problem was that, at the end of the day, these reports did not save him from further abuse and did not protect his siblings.

However, according to the lawyer, the case will still hasten the day when mandatory reporting is introduced. "It is the only way to get ourselves out of liability."

This raises the question of resources. While the law has been changed, child protection workers are concerned that they don't have the resources to implement it.

One of the consequences of the case would be that skilled individuals would be frightened to work in the public sector, sources said. "Why would any intelligent person make a decision to come and work in child protection when they're going to be put into a situation where any of their actions might be the subject of this kind of scrutiny?"

However, ultimately the impact of the case will lie in the fact that, for the first time, the victims of child abuse have publicly declared that they have nothing to be ashamed of, that they were horrendously treated when they were vulnerable and powerless, and that someone should be responsible. This will undoubtedly encourage other victims to do likewise.