By Dearbhail McDonald
Irish Independent
July 7, 2011
http://www.independent.ie/national-news/little-chance-orders-will-pay-half-of-sex-abuse-bill-2814981.html
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| Pope Benedict visits an exhibition of Pope John Paul II at the Braccio Carlo Magno (Carlo Magno's Arm) in St Peter's Square in the Vatican yesterday |
THE chances of the Government sending in the bailiffs to the religious orders is about as likely as the sisters and brothers footing their half of an estimated €1.36bn abuse bill: negligible.
Only two of 18 religious orders have moved to breach a shortfall of up to €375m to compensate victims of abuse.
A 2002 church/state deal, which limited the liability of the orders at €128m, was derided for its perceived generosity to the church.
The biggest problem for the Government is how to force the religious orders to pay their share. This is because of the near-impenetrable charitable trusts and other special purpose entities behind which, it is believed, much of the church's wealth lies.
Trusts
Many religious orders are structured as trusts or have restructured as trusts in recent years.
Trusts and foundations are much loved by high-net-worth individuals to protect their wealth.
One religious order that became a trust is the Christian Brothers. The Christian Brothers' Edmund Rice Schools Trust (ERST) -- which is responsible for former Christian Brothers schools -- was established in 1996 to mark the beatification of the order's founder.
But many suspected it was established to protect the order from the type of payouts now demanded by the State.
Trusts are created for a specific purpose and assets, including cash, can only be applied or transferred according to strict rules such as alleviating poverty, education and looking after sick and elderly nuns and brothers.
Therefore, it could be argued that it would be illegal to apply funds for abuse victims as it contravenes the purpose of the trust.
The matter will ultimately land on the desk of the Attorney General, who may take solace in the fact that the courts have been willing, in company and family law cases, to "pierce the veil" and go behind trusts to see what their true purpose is.
But the law is only one aspect of the conundrum. The separation of church and State in Ireland is still in its infancy, as the highly complex debate over school patronage has shown.
It is the art of political persuasion, rather than the long arm of the law, that will resolve this impasse, if at all.
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