Scottish Government Consultation on the removal of the 3 year limitation period from civil actions for damages for personal injury for in care survivors of historical child abuse
A response by Slater + Gordon Lawyers (UK) September 2015
Introduction
Slater & Gordon Lawyers is one of the UK’s leading consumer legal services firms, with offices across the UK including Edinburgh. In addition to our expertise in general personal injury law in Scotland and England, we have a renowned and market-leading practice representing survivors of child sexual abuse. Currently we represent more than 800 survivors of child abuse, including in the following high profile cases:
· Jimmy Savile (175 clients) · Rolf Harris · Max Clifford · Stuart Hall · Cyril Smith · Greville Janner · Fort Augustus (Scotland) · Gordonstoun School (Scotland) · Rochdale Child Sexual Exploitation · The Catholic Church · The Methodist Church · Jehovah’s witnesses · Chethams School of Music · Durham Chorister · The Scout Association · St John’s Ambulance Service · Ashdown House · St Pauls/Colet Court · Hillside First · St Paul’s Cathedral Choir School · The Scout Association · St George’s School · Barnardos · The Church of England · North Wales Child Abuse Enquiry
Our work is led by two well-known practitioners:
Richard Scorer, Head of our Abuse team, has been described as ‘one of Britain’s leading specialists’ in child abuse litigation. He is rated by Chambers Independent Legal Guide as a “Leader in the Field” of serious injury with “Eminent practitioner” status. Richard is the co-author of the leading legal textbook on child abuse claims in England, Guide to Child Abuse Compensation Claims, published by APIL/Jordans Legal Publishing in 2011. He is also the author of Betrayed: The English Catholic Church and the Sex Abuse Crisis published by Biteback Books in 2014, described by one reviewer as a “foundational text” on the subject of child abuse in the Catholic Church. Richard has written extensively on the law relating to limitation. He currently acts in the Rochdale child sexual exploitation and Max Clifford cases.
Liz Dux leads the group litigation in the Savile and Harris cases, as well as acting for alleged victims in the Janner case. She regularly appears as a media spokesperson on behalf of clients, most recently in relation to abuse in music schools. One of the country’s best known and most experienced personal injury lawyers, she is rated by Chambers Independent Legal Guide as a “Leader in the Field” of serious injury and in 2015 was The Times newspaper Lawyer of the Week for her path-breaking work on the Savile group litigation. In addition to her high-profile casework she has campaigned extensively for mandatory reporting of child abuse.
Accordingly, we bring to this consultation significant expertise and experience in seeking and securing reparation for childhood abuse. In responding, where appropriate we adopt the term 'survivors' to refer to victims of abuse and 'non-recent' to refer to what has frequently been described as 'historic' abuse, these being the preferred terms of our client group.
Q1 Do you agree with our proposal to remove cases relating to historical child abuse from the limitation regime?
Yes. From our long experience of these cases it is clear that civil claims by survivors of non-recent abuse merit a particular type of treatment within the legal system in order to ensure fairness. The vast majority of civil claims which are brought in respect of child abuse relate to events which occurred many years, often decades ago.
There are a number of reasons for this:
· One of the features of child abuse is that it is accompanied by secrecy and pressure on the victim to remain silent. Indeed victims often experience threats of harm if they speak out; · Until relatively recently, children who reported abuse were frequently not believed and having reported the abuse once to a social worker or other person in authority, did not do so again. Indeed many survivors only disclose when they become aware (eg from press coverage) that others have been abused by the same perpetrator, and conclude that they are now likely to be believed; · Reporting abuse is particularly difficult as victims are often ashamed and embarrassed by the circumstances of the abuse (and fearful of being treated as a potential risk to other children). It is only very recently, as a result of publicity around 'celebrity' cases, that the social climate has become more receptive to allegations of abuse. Even with that greater openness, shame, embarrassment and fear remain significant obstacles to disclosure; · The scope of responsibility of public authorities for a child in care and for the institutions where children are placed has only been acknowledged by the courts relatively recently.
The reality for survivors of child abuse was aptly described by the English Judge Lord Justice Sedley. In considering a civil claim arising from sexual abuse at Forde Park approved school, he explained that:
“Inevitably there is a problem with limitation in these proceedings. I say “inevitably” because it is in the nature of abuse of children by adults that it creates shame, fear and confusion and these in turn produce silence. Silence is known to be one of the most ...... fruits of abuse. It means that allegations commonly surface, if they do, only many years after the abuse has ceased”. (Sedley LJ December 2000 in Ablett & Others v Devon CC)
As the consultation paper observes, in theory, the law in Scotland currently allows Judges to deploy equitable discretion to permit a case to proceed after the expiry of the limitation period. In reality this discretion has invariably been deployed in a manner which has prevented the vast majority of cases from proceeding, the best known example being the Poor Sisters of Nazareth case in 2007. This is unfair and wrong.
Q2 What are your views on how the proposed change in the law may apply to cases which have been raised unsuccessfully on the basis of the current law on limitation?
We acknowledge that this point presents some difficulty. On the one hand, excluding from any new limitation provisions, cases which were raised unsuccessfully in the past due to the law as it then stood would create an obvious injustice: survivors who came forward earlier would be unable to claim but those who have waited longer may be permitted to pursue their case. On the other hand,
we recognise allowing cases which failed previously to be revived now may provoke challenges from defenders based on Human Rights Act/ res judicata.
As a matter of basic fairness, we believe that the law should include provision to enable those who have brought their case previously, but whose case failed on the basis of limitation, to bring a claim following a change in the law at this stage. Clearly, such a provision would apply to those cases which failed or would have failed under existing limitation law, but which are otherwise meritorious, and there would need to be a judicial filtering mechanism to determine which cases fall into that category. Such a provision could be time-limited- for example a 24 month ‘window’ to apply (obviously this would need to be widely publicised).
However if such an approach is deemed impossible then we believe that the basic unfairness of the situation would be best addressed by establishing a suitable redress scheme outside of the civil litigation process. Because of the well known difficulties in bringing cases in Scotland given the limitation position, we anticipate that the numbers of individuals who have raised cases previously but been struck out on limitation will be relatively modest. Accordingly, the numbers falling to be compensated under such a redress scheme will be relatively modest, but basic justice and fairness requires that a solution be found for them.
Whilst responding on this point, we should also comment on the prescription aspect, whereby cases where the abuse occurred before September 1964 will continue to be time-barred. We believe that such a prescription is artificial and inappropriate. Every non-recent child abuse case should be judged on its individual merits. It is unfair and unjust to automatically refuse cases that pre-date 1964 simply on the basis of an artificial cutoff date. However, if the Human Rights factor is considered to be an insurmountable obstacle to change, again, a redress scheme should be considered.
In relation to applying the law given the different standards of the time, we do not believe that this difficulty applies to sexual abuse cases, as clearly sexual abuse of children has always been a crime. We acknowledge that some cases involving allegations of physical chastisement may raise issues regarding “standards of the time”. However, in our experience, the courts in England have not experienced difficulty in assessing those cases and can readily do so with the benefit of expert evidence. We are not aware of any abuse case where an English court has found itself unable to decide the matter because of insufficient information about the 'standards of the time'.
Q3 Do you agree that child should be defined as someone who has not yet attained the age of 18?
Whilst the definition of “child” as set out in the consultation paper is reasonable, there are three further categories of case which any new legislative framework needs to take into account:
· Abuse began before the age of 18 but continued after the age of 18.
· Abuse began at or after the age of 18 but was preceded by a period of grooming whilst the pursuer was still a minor.
· Vulnerable adults. Clearly, vulnerable adults who lack mental capacity are exempt from the time bar under existing provisions. However, it is important that legislation provides for the position of vulnerable adults who did not technically lack mental capacity but were sufficiently vulnerable to be at risk of abuse and too fearful to disclose. We have in mind, for example, cases involving sexual assaults by therapists on their patients - such persons are often in a very vulnerable
position so delays in disclosure should be sympathetically considered even if technically the pursuer has legal capacity.
Whilst the large majority of cases we come across involve assaults on children, the above categories are more common than is generally appreciated, and should benefit from the proposed change.
Q4 Do you agree that any definition of “child abuse” should cover physical, sexual, emotional, psychological, unacceptable practices and neglect?
Yes we agree with this definition.
Q5 Do you agree that types of care (outlined in paras 6.9 to 6.11) should be covered?
Yes. We commend the inclusion of foster care within the definition as currently this aspect lacks clarity in England.
Q6 Do you think that the proposed exemption from the limitation regime should be extended to cover all children, not just those abused “in care”?
Yes. Our concern is that the definition of “in care” is too restrictive. For example, it appears that children abused in some church settings (e.g. altar boys) could be excluded (although this is not entirely clear from the consultation paper). If so, this is illogical and unfair. The proposed exemption should, in our view, apply to any circumstances where a defender was in loco parentis to the pursuer.
Q7 What do you think the impact of implementing these proposals would be in relation to the issues below? Where possible please illustrate your answer with figures.
Is it likely that more or fewer actions will be raised?
We believe that there will be more actions as a result of the proposed change, as survivors who previously were unable to bring a case will come forward. However, it is important to appreciate this will be a relatively temporary situation as non-recent cases are dealt with by the legal system. As those cases are resolved, in the future the numbers will reduce.
Is it likely that more or fewer cases come to court?
Given that there will be more cases, then clearly more will come to court. However, it should be borne in mind that in England, our experience is that the vast majority of cases resolve before Trial.
Is it likely that more or fewer cases will be settled out of court?
More cases will be resolved out of court given that limitation issues will be less contentious. In England, certainly until the law was clarified by the Hoare case in 2008, more lawyer time was spent arguing about limitation than anything else.
Is it likely that cases will require more or less preparation time?
Less. In litigation in England, particularly before the Hoare case, limitation was a significant and expensive element of Trial preparation. If the issues around limitation can be simplified, this will promote earlier resolution and so less preparation time.
Is it likely that cases will require more or less court time?
Less. Again, if limitation law is simplified, less court time will be required to deal with them.
Can you quantify the benefits for pursuers?
Pursuers who have suffered serious abuse and have been failed by institutions will, rightly, have the opportunity to secure the reparation to which they are entitled.
It is important to understand, however, that the proposed change creates not only benefits for pursuers but also benefits for wider society. Reparation provides the wherewithal for survivors of abuse to rebuild their lives. For example, many of the survivors of abuse we have represented in claims in England have used their compensation monies to pay for therapy and education, which enables them to become more productive members of society, as well as reducing the burden on the NHS. Therefore the benefit for society as a whole should not be ignored.
Can you quantify the benefits for defenders?
We believe that greater clarity over the law regarding limitation will assist defenders as it creates greater certainty.
Also, believe that the proposed change will benefit institutions with care of children in broader ways. Requiring defenders to meet claims for abuse creates a powerful incentive to prevent abuse in the future, which promotes better safeguarding practices now. This is in the interests of those institutions as well as the children in them, and wider society.
Can you quantify the drawbacks for pursuers?
No drawbacks as such. It is important to appreciate however that limitation is only one of a number of issues in these cases, and there will be other hurdles for pursuers to overcome.
Can you quantify the drawbacks for defenders?
Clearly defenders will face more claims than before as non-recent cases are considered by the courts. However we believe that this will be a relatively temporary situation as non-recent cases work their way through the system.