O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education
| Date | 01 January 2015 |
| Published date | 01 January 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12110 |
| Author | James Gallen |
O’Keeffe vIreland: The Liability of States for Failure to
Provide an Effective System for the Detection and
Prevention of Child Sexual Abuse in Education
James Gallen*
In O’Keeffe vIreland, the Grand Chamber of the European Court of Human Rights found that
Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National
School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading
treatment) and Article 13 (right to an effective remedy) of the European Convention on Human
Rights. This note argues that the decision is important in expanding the Court’s jurisprudence
regarding positive obligations under Article 3 to child sexual abuse in a non-state setting where
there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case
raises concerns about the Court’s methodology for the historical application of the Convention
and about the interaction of Article 3 positive obligations with vicarious liability in common law
tort regimes.
INTRODUCTION
In O’Keeffe vIreland (O’Keeffe), the European Court of Human Rights (the
Court) considered whether Ireland should have been aware of the risk of child
sexual abuse in schools owned and managed by the Catholic Church and
whether, given the state’s limited role of financial support, there was effective
legislative and policy protection.1In holding Ireland liable for a system that
subjected children to the risk of sexual abuse in an educational context, the
Court expanded its jurisprudence on the positive obligations under Article 3 of
the European Convention on Human Rights (the Convention). This note
argues that the case also raises concerns about the Court’s methodology for the
historical application of the Convention and about the interaction of Article 3
positive obligations with vicarious liability in common law tort regimes.
FACTS OF THE CASE
From 1968 the applicant Louise O’Keeffe attended Dunderrow National
School, which was staffed primarily with lay teachers but managed by the local
priest and owned by the local Catholic Bishop. She and her parents were
unaware that the school manager had received a complaint in 1971 alleging that
a teacher, LH, had sexually abused a child, but had not acted upon that
complaint. In 1973 the applicant was subjected to approximately 20 sexual
assaults by LH in his classroom. Following a meeting of parents with school
authorities in 1973 in which the sexual abuse of several children was alleged, LH
resigned, but was later employed in another school until his retirement. In 1996,
*Lecturer, School of Law and Government, Dublin City University. I would like to thank Dr Mark
Coen for his assistance.
1O’Keeffe vIreland [2014] ECHR 96.
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James Gallen
© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. 151(2015) 78(1) MLR 140–163
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