State liability for abuse in primary schools: systemic failure and O'Keeffe v. Hickey

Abstract

Due to the historical arrangement between Church and State, the Irish State has always discharged its duty to provide for free primary education exclusively through the provision of funding to privately owned and managed schools. Consequently, in O'Keeffe v. Hickey, where a woman sued the State in respect of sex abuse she suffered when in school, the Supreme Court held that on ordinary tort law principles of vicarious liability, primary school teachers are employed by the individual school and not by the State. Consequently, the State bears no liability for torts committed by teachers in the course of their employment. Moreover, the court expressed doubt as to whether such abuse could be considered to occur within the course of employment for the purposes of vicarious liability. This article examines this case from the perspective of the obligations of the State under the Irish Constitution and the European Convention on Human Rights. It argues that viewed globally, these obligations do not allow the State to insulate itself from liability for what occurs in state-funded primary schools; on the contrary, in cases of systemic failure to protect children from sex abuse, there are compelling legal grounds to impose liability on the State.

Keywords:

• Constitution
• child abuse
• liability
• schools

Notes

1. See, for example, Article 26(1) of the Universal Declaration of Human Rights; Article 13(2) of the International Covenant on Economic, Social and Cultural Rights; and Article 28(1) of the United Nations Convention on the Rights of the Child.

2. Article 10 of the Constitution of the Irish Free State 1922 provided that ‘[a]ll citizens of the Irish Free State have the right to free elementary education’.

3. [1980] IR 102; see, for example, O'Higgins CJ at 122: ‘… the imposition of the duty under Article 42, s. 4, of the Constitution creates a corresponding right in those in [sic] whose behalf it is imposed to receive what must be provided. In my view, it cannot be doubted that citizens have the right to receive what it is the State's duty to provide for under Article 42, s. 4’.

4. The major exception to this occurred in Crowley, where the State escaped being held liable for the fact that children in one parish were left without education due to a localised teachers’ strike on the basis that the State had made arrangements and was not at fault for what happened at a local level (see Kenny J [1980] IR 102 at 129–30). The cause of action lay instead against the teachers’ union, which was held liable in Hayes v. Ireland [1987] I.L.R.M. 651 and Conway v. Irish National Teachers Organisation [1991] 2 IR 305. This aspect of the Crowley decision has been the subject of criticism and has arguably been retreated from in Sinnott v. Minister for Education [2001] 4 IR 545 at 590. See O'Mahony 2006, 6–15 to 6–23.

5. [2008] IESC 72.

6. [1980] IR 102 at 126. It is interesting to note that Kenny J. included the provision of buildings within scope of the State's duty, even though this was part of what was intended to be excluded by the wording of the duty to ‘provide for’ free primary education.

7. [1980] IR 102 at 126.

8. Statistics provided to the author by the Department of Education for 2005/2006 indicate that during that year, 98.5 per cent of ordinary National Schools were denominational, with 92.1 per cent being Catholic denominational. Out of 3160 ordinary National Schools, 44 were multi-denominational, while 2 inter-denominational schools were also listed. A similar situation pertained to special schools, with 119 out of 124 being Catholic denominational. The number of multi-denominational schools has increased somewhat in the three years since – there are now 56 Educate Together schools, with 12 more planned for next year – but it is clear that they still represent a tiny minority of the overall total.

9. See sections 14, 17 and 25 of the Education (Welfare) Act 2000.

10. See DPP v. Best [2000] 2 ILRM 1 and O'Shiel v. Minister for Education [1999] 2 ILRM 241.

11. These facts are set out in the judgment.

12. At that rate, it would take him nearly 64 years to pay the compensation awarded (without any interest).

13. For an overview of the relevant principles of Irish law relating to vicarious liability, see McMahon and Binchy 2000.

14. LO'K v. LH [2006] IEHC 13.

15. [2003] 4 IR 361; see Kilkelly 2008, 12.113 to 12.116.

16. De Valera J cited Costello J in W v. The Attorney General (No 2) [1997] 2 IR 141 at 169 with approval on this point.

17. Hardiman J delivered the leading judgment, and a separate judgment was delivered by Fennelly J. Murray CJ concurred with aspects of each judgment, while Denham J concurred with Fennelly J. Geoghegan J dissented.

18. See the decisions of the Canadian Supreme Court in Bazley v. Curry [1999] 174 DLR (4th) 45 and Jacobi v. Griffiths [1999] 174 DLR (4th) 71, as followed by the House of Lords in Lister v. Hesley Hall Ltd [2002] 1 AC 215.

19. In particular, see his judgments in Sinnott v. Minister for Education [2001] 2 IR 545 and TD v. Minister for Education [2001] 4 IR 259, to which he made reference in his judgment in O'Keeffe.

20. This is particularly true in the area of due process in criminal trials, such as CC v. Ireland [2006] 4 IR 66, although interestingly, Hardiman J has also been seen to take a proactive stance in other decisions which have in fact had resource implications for the State, such as Ó Beoláin v. Fahy [2001] 2 IR 279.

21. In X v. Bedfordshire County Council [1995] 3 All ER 353, Lord Browne-Wilkinson concluded that to allow claims to be brought alleging that an LEA has been negligent in making a decision would be to duplicate remedies. Since vicarious liability was available in almost every case where negligence against an LEA was alleged, there was no need for direct liability for systemic failure. In this regard, it is worth noting that due to the approach of the Irish courts in Delahunty and O'Keeffe, vicarious liability against the State is not available as a remedy in cases where children are victims of sexual abuse at the hands of teachers. Moreover, X v. Bedfordshire was subsequently the subject of a successful application to the European Court of Human Rights in Z v. United Kingdom (2002) 34 EHRR 97, which is discussed below. Later, a different approach was taken in the House of Lords decision in Phelps v. Hillingdon London Borough Council [2000] 4 All ER 504, in which both Lord Slynn (at 522) and Lord Clyde (at 538) expressly left open the possibility of imposing direct liability for systemic failure. In spite of this, such a claim was later rejected in Carty v. London Borough of Croydon [2004] ELR 226 at 248 and 257–8 by Gibbs J, who stated that there are conceptual difficulties with the notion of a separate direct duty of care owed by an authority independently of the acts or omissions of its servants or agents. In the absence of some catastrophic event over which the authority could exercise no control (such as complete withdrawal of funding or widespread physical damage to its resources), Gibbs J felt that it was very difficult to see circumstances in which a systemic failure could be anything other than the product of individual or collective failure on the part of the authority's servants or agents. See further O'Mahony 2006, 10-07, and 10-11 to 10-13.

22. See Re Article 26 and the Adoption (No 2) Bill, 1987 [1989] IR 656 at 663, where Finlay CJ, delivering the judgment of the Supreme Court, stated that Article 42.5 applied to failures ‘not only [in] the parental duty to educate but also [in] the parental duty to cater for the other personal rights of the child’.

23. See section 3 of the 1991 act as interpreted in MQ v. Gleeson (High Court, 13 February 1997, Barr J).

24. [2001] 2 IR 545 at 569.

25. [2001] 2 IR 545 at 590.

26. Ryan v. Attorney General [1965] IR 294, per Kenny J at 313.

27. State (C) v. Frawley [1976] IR 365, per Finlay P at 374.

28. G v. An Bord Uchtála [1980] IR 32, per O'Higgins CJ at 55.

29. O'Keeffe v. Hickey [2009] IESC 39.

30. European Convention on Human Rights Act 2003, sections 2 and 4. See Kilkelly 2009.

31. Dublin County Council v. Fennell [2005] 1 IR 604.

32. See Roche 2009.

33. [1999] 27 EHRR 611.

34. [1999] 27 EHRR 611 at para. 22.

35. [1999] 27 EHRR 611 at paras. 23–5. In this particular case, the court was influenced by the fact that the stepfather who had beaten his son was acquitted of assault in the domestic courts on the grounds of reasonable chastisement, in spite of the fact that the ECtHR was of the view that the beating was serious enough to fall foul of the prohibition on inhuman or degrading treatment or punishment. It could possibly be argued that the existence of an effective system of criminal prosecution and conviction for the conduct complained of would suffice as a form of ‘effective deterrence’ so as to discharge the State's duty to protect children against ‘serious breaches of personal integrity’. Given that Leo Hickey was convicted and sentenced to three years in prison, it could be argued that the ECHR does not require a further mechanism for state liability over and above the compensation awarded to Louise O'Keeffe by the Criminal Injuries Compensation Tribunal. As against this, the making of an award by the UK Criminal Injuries Compensation Board did not deter a finding of a breach of Article 3 against the State in the subsequent case of Z v. United Kingdom [2002] 34 EHRR 97, although it should be noted that the awards made were extremely small, since no criminal conviction had actually occurred in the case.

36. [2002] 34 EHRR 97; see Kilkelly 2008, 8.013 to 8.014.

37. [2002] 34 EHRR 97 at paras. 69–75.

38. [2002] 34 EHRR 97 at para. 109.

39. Having said this, in cases where the blame does not lie solely at the feet of the State, and the court is of the opinion that it is appropriate and just that the education provider should also carry some responsibility, the possibility would open up of concurrent wrongdoers legislation being brought to bear. See Part III of the Civil Liability Act 1961.

40. See Hardiman J: ‘All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first-named defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.’ See also Fennelly J: ‘On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national school's. See Kilkelly 2008, 12.116.

41. Kilkelly suggests amending the Constitution so as to insert an express right of children to protection from harm. Although the analysis in this article suggests that such a duty can already be read into Article 42, at least in the setting of the primary education system, such an amendment would certainly be a more explicit and concrete way of clarifying the extent of the State's obligations in this regard.