Turn black into white

Clerical child abuse is a charged topic here since the Ryan Report was published last week. Most of the official commentary sounds like what it is – flapping attempts by government to sound sympathetic without saying anything that might, in hindsight, be construed as a commitment.

Yet, despite such careful spinning, much of what has been said still raises awkward questions.

Legally speaking, Irish schools are not owned by the Irish State. The question of who owns Irish schools has been a veritable romper-room for legal gymnasts of all stripes. Blink an eye, delete a comma, or shift a tense, translate a verb, and presto, change-o, the Irish state may (or may not!) be legally responsible for what goes on in Irish schools.

Personally, my favourite bit of hyperbolic gibberish was uttered in 2008, by Mr. Justice Hardiman who relied on the vagaries of translation to find that: ‘The distinction between “providing for” and “providing” lies at the heart of the distinction between a largely State funded but entirely clerically administered system of education on the one hand and a State system of education on the one hand.’ In other words, in the original Irish, our constitution can be understood to mean that the state is obliged to provide FOR education to happen, but not necessarily to provide actual schools, per say.

Read too many judgements and it is tempting to forget that some officers of the court live in the real world, which is why Solicitor James MacGuill’s remark that ‘the plaintiffs are accepted all around as being innocent victims of appalling abuse’ is so damned refreshing.

The ownership of Irish schools is a moveable feast; a semantic and rhetorical mine-field; and despite the fact that the government has been repeatedly instructed to clean the mess up by a host of national and international bodies – not the least of these being the United Nations’ Human Rights Committee – nothing’s changing anytime soon.

As it stands now, religious groups apply to be recognised as a school patron, they then provide a parcel of land (usually adjacent to a church, but sometimes donated by the local community), at which point the state pays for a school to be built on that land; the school that is thus built is then deemed to be ‘owned’ by the religious order – and it is vital to understand that this claim of ownership is absolute – while the ongoing maintenance is paid for by the state, which also pays capitation grants for each pupil, plus the salaries of all the school’s staff.

Should the order decide to sell their school and invest the profits in mushroom farms or overseas missions, they can do that. They own it, to do with as they please.

The religious orders have clung to this right of ownership with bull-dog tenacity in every instance – except where it comes to the issue of compensation for the victims of clerical abuse, in which case, 18 religious orders have made it very clear that they will not re-negotiate the indemnity they won from Bertie, an indemnity that leaves them liable for less than 10% (and perhaps less than 5%) of the total amount of compensations that will be paid.

To earn this indemnity, the orders committed to pay 128 Million Euros, or the equivalent in lands, but it is unclear how much has actually been paid. On reading the fine print, it turns out that many of the properties couldn’t be transferred, or sold; trusts owned by the orders cannot be used for compensation as they are legally committed to other uses, and lands are in trust for educational use. In plain English: they’ve left the state to pick up the whole tab.

Shortly put: we pay to build the schools, we pay to run the schools, and we pay to staff the schools, which are owned by religious orders, but when members of those orders commit crimes against students, those orders are not liable for the damage they have helped to perpetrate – and so, we pay that bill, too.

Or as Eibhlin Byrne, Mayor of Dublin and Fianna Fail Candidate for the European Parliament put it: “Ultimately under our constitution it is not religious orders who have responsibility for children outside of home, it is the state.” It seems Eiblin is in agreement with Batt (our current Minister on all things educational) who claims that: “The state was going to compensate these people in any event. There was no compunction on the clergy, the church, to make a compensation payment. Many of these schools were under the state’s jurisdiction, we owed a duty of care as a state to these children, that duty was not exercised in full.” (Batt O’Keeffe, Fianna Fáil TD, and Minister for Education and Science)

But it all goes very pear-shaped when we throw in last December’s Supreme Court decision in the Louise O’Keeffe case. The state has a duty of care, yes, but, somehow, that duty of care did not extend to Louise O’Keeffe – or at least not according to the Supreme Court ruling which found the state was not responsible for the fact that Louise was sexually abused in her local school. The court held that, in Louise’s case, this duty of care did not rest with the state.

Not to put too fine a point on it – but whoever is scripting the talking points for Fianna Fáil had best get their story straight. Somebody owns our schools, and whoever does ought to be held responsible, step up, and foot the bill when things go wrong. If the state owns the schools, then the bill is ours; and if the religious own the schools, then hand them the tab.

There’s much babble a-foot now about the notion of setting up a trust to help the victims of clerical abuse, which sounds all very nice and friendly, but is decidedly round of the mark. Setting up a new quasi-governmental-religious institution is not the answer, and I suspect the victims have had their fill of those sorts of institutions, thank you.

Strangely, no-one is mentioning the most obvious solution; let the religious orders surrender their “ownership” of our schools to the state. This would allow the state to take responsibility for our schools, as it should do – and allow the religious to make a tangible and relatively painless financial contribution to help redress the problems they created.

Without meaning to speak out of turn, I suspect that many, if not most, of the victims of clerical abuse would be to some degree satisfied by the simple fact of knowing that the religious orders that tortured them as children will never again have that kind of authority over children in our schools.

Think about it – if this had happened to you – which would you rather have, 30 or 60 thousand euro? Or the sure knowledge that the organisations that hurt you were now  stripped of their authority over children? The money will be gone in a year, or two. But the satisfaction of knowing that the problem has been dealt with at the root – that may just last a good deal longer.

One of the excuses most-often cited is that clerical child abuse is only a segment of the overall volume of child abuse, and while I’m sure that is likely true, it is equally true that the clergy is by thier own mandate, duty-bound to provide refuge and respite from the evils of the world; if there was one group we should have been able to trust with the care of our children, it should have been them. Viewed in this light, the depth of betrayal documented in last week’s report is staggering.