Scotland leads the way in legislation on redress for child sex abuse victims - Graeme Watson

On 20 October, the Independent Inquiry into Child Sexual Abuse published its final report. This inquiry ran parallel to the Scottish Child Abuse Inquiry and covers England and Wales. Two of the key recommendations are already in place in Scotland, so it is worth considering whether those are likely to be effective.

The report’s conclusions are stark: one in six girls and one in 20 boys experience child sexual abuse before the age of 16. Historically, there were inadequate measures to protect children from the risk of being sexually abused. Victims were frequently thought to be lying or were accused of being responsible for their own abuse. This problem remains endemic, not least through online-facilitated abuse.

The Inquiry’s report sets out recommendations designed to improve the detection and prevention of abuse. The aim is to “tackle systemic weaknesses in organisations and practices which have left children vulnerable to abuse, exposed them to harm or denied them access to justice.” The recommendations include establishing a Child Protection Authority to inspect any institution associated with children and introducing a statutory mandatory reporting requirement for allegations of child sexual abuse.

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Two key recommendations will resonate in Scotland: the introduction of a national redress scheme and removing the three-year limitation period for personal injury claims brought by victims. The Scottish Parliament has already legislated for both.

Graeme Watson is a Partner, Clyde & Co

The Inquiry report states that the redress scheme should “ensure that, as far as possible, victims and survivors secure efficient access to the help they need.” The equivalent Scottish scheme is already in place. Applicants can seek a fixed payment of £10,000 or an individually-assessed award of up to £100,000. The scheme covers physical and emotional abuse and neglect as well as sexual abuse, but it is limited to abuse suffered in residential care settings. It is open to those who suffered abuse under the age of 18 before 1st December 2004.

It is fair to say, however, that Redress Scotland is off to a slow start. The most recent figures from the Scottish Government are that the scheme has received 1,468 applications. However only 277 have been passed to the scheme. There has been an initial determination in 178. The government states it is prioritising applications from those with a terminal illness or who are aged over 68.

A redress scheme is never going to be a complete answer. It does not cover all instances of abuse and, for some victims, the sums available are lower than a court may award. The Scottish Government also sought to make access to the courts more straightforward by changing the law on limitation. Usually a personal injury claim must be brought within three years of events. Legislation in 2017 amended that for cases based on abuse suffered under the age of 18. The limitation period was removed, subject to two exceptions. A case may still be dismissed if a fair trial is impossible or the defender would suffer substantial prejudice if the action were to continue, outweighing the interests of the claimant.

The courts have considered the new legislation in several cases. While it is still early days, those cases indicate that a case will be dismissed where the alleged abusers died before allegations could be put to them or where they cannot be traced.

The irony is that one reason for the Scottish Government removing the limitation period was that they considered the law in Scotland was less responsive than its English equivalent. Now England and Wales may consider the Scottish experience before revising their approach.

Again, however, the comparison is not direct. The Scottish legislation covers much more than only sexual abuse. It is likely, however, that south of the border there would be a similar exception where a fair trial is impossible, to avoid the risk of breaching the European Convention on Human Rights.

The critical difference is that these changes are already in place in Scotland. It took several years from them first being mooted to their coming into force, even with the Scottish Government being a key proponent for both. Legislation in England and Wales will require time in Westminster and, almost certainly, government backing. Given that a redress scheme would require government resources there is a risk this may not be a high priority. Scotland’s approach may lead the way for some time yet.

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Graeme Watson is a Partner, Clyde & Co

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