Graeme Watson: Doubts cast over legal certainty

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Draft legislation to remove the three-year time limit in which survivors of child abuse can raise a claim for damages was published on 14 March, generating a mixed response.

The Limitation (Childhood Abuse) (Scotland) Bill follows last year’s consultation with survivors and other bodies on removing the time limit (known as time-bar) for raising cases alleging historical child abuse, meaning that anyone who suffered abuse after 26 September, 1964 would be able to raise their action.

The Scottish Government first proposed the legislation when it announced a public inquiry into child abuse (the Scottish Child Abuse Inquiry started its work on 1 October, 2015) and a dedicated support fund for survivors of abuse who were placed in care by the state.

The proposed legislation calls into question the centuries-old understanding that the law brings certainty and that a court decision brings finality.

There are several aspects to the bill. Least surprising is that it would remove the time-bar defence for claims where the current time limit has not yet run out.

More controversially, it would affect claims that are already time-barred and, most notably, cases which had previously been concluded could be reopened.

Currently, the Prescription and Limitation (Scotland) Act 1973 sets out a time frame in which actions must be raised.

For personal injury, this is three years from when the abuse victim sustained the injury, or from when they became aware that they had sustained the injury, or – if they were a child at the time – from when they became an adult.

There is a degree of judicial discretion which allows older cases to be raised if the court considers it equitable to do so.

If there are records and there are witnesses, then the case should be able to continue.

The consequence of what is proposed would be that the only cases that would benefit are those cases where a court would say, or has previously said, it is inequitable to proceed.

Judicial determination would no longer be final.

Time-bar, in common law jurisdictions, is recognised as having a societal benefit, providing all parties with certainty on managing their affairs.

Yet it recognises that there is a balance between the need for all parties to obtain justice and the risk that by the passage of time, justice is no longer objectively possible.

Memories fade, documents are lost and there are unknown “unknowns”. We are talking about events dating back more than 50 years.

Most actions are not raised against the abuser, but rather against the employer as being vicariously liable for the abuser.

Employers, charities and local authorities, would be faced with tracing insurance cover for periods of alleged abuse, the records of which may no longer exist.

This is a particularly live and pressing issue for charities which may not have retained records of the insurances they had in place at the time. They may now effectively be uninsured for claims, which, in turn, would impact on their work today.

What is more, there is a danger that by care providers contacting former residents to provide witness statements or evidence, they will cause anguish and distress, regardless of the truth of the allegations.

Progress has been made since last year’s consultation.

At the time, concerns were raised over the limited range of survivors who would be assisted by removing time-bar.

Initially it was proposed that the legislation would cover those in care, which raises the question: what about children who have been abused in the home, or as hospital outpatients rather than inpatients?

When the draft legislation was published earlier this year, it was much broader in its application, extending to anyone under the age of 18 who had suffered abuse.

In due course, the Limitation (Child Abuse) (Scotland) Bill will be introduced to the Scottish parliament and assigned to a committee for further scrutiny.

The inquiry and National Confidential Forum provide opportunities for abuse survivors to have their voices heard and to affect public policy now on the care of our children.

Still, the fact remains that there is a societal benefit to the law bringing certainty. This legislation would seek to undermine that in novel and concerning ways.

Graeme Watson is a partner at Clyde & Co