Clare Jerrom speaks to defendant lawyer Chris Webb-Jenkins, who has 20 years' experience acting for social care providers in the public, private and voluntary sectors, about the possibility of a Redress Scheme being introduced for survivors of abuse in England.
Victims and survivors of child sexual abuse seeking ‘their day in court’ to hold the accused perpetrator of abuse to account might be left disappointed by the litigation process, an expert defendant lawyer has warned.
The Independent Inquiry into Child Sexual Abuse carried out an investigation into accountability and reparations which found that different victims and survivors of child sexual abuse wanted various different outcomes as a result of their claims, which may include an apology, an explanation, to be believed, to hold an organisations to account, or ‘their day in court’.
“We heard that acknowledgement and recognition of the abuse was important to victims and survivors. For some, this meant having their ‘day in court’. They wanted to explain in public what had happened to them and for there to be recognition of the abuse that they had suffered. Some, but not all, also wanted the opportunity to face their abusers,” said the inquiry report.
Chris Webb-Jenkins, who has more than 20 years’ experience acting for social care providers in the public, private and voluntary sectors and who is currently partner at Weightmans - a leading UK law firm acting for a range of public organisations, private companies and individuals – explained that the civil justice system is not designed specifically to deliver these outcomes.
“Our civil justice system is not designed to guarantee that people have their ‘day in court’, it is designed to resolve disputes,” said Mr Webb-Jenkins. “If a defendant makes a reasonable offer then the process puts pressure on a claimant to take it.
The claimant may be unable to recover all their legal costs if the damages awarded to them at trial are lower than earlier offers made to them. A claimant may have decided not to accept that earlier offer because they wanted their day in court. That can be very understandable, but within our civil justice system, it can have costs consequences.”
“Furthermore, some people recover substantial damages and yet still find that they have not attained the type of closure they anticipated. Settlements usually do not involve any finding of facts. Defendants will make admissions where the issues are clear. However in some cases the issues are not clear, and so the claims settle without any admissions. The survivor may feel they have not been vindicated in the way they had wished.”
“However, this is a characteristic of our civil justice system. It is not designed primarily to establish the truth, it is more about resolving disputes,” added Mr Webb-Jenkins.
In addition, going to trial is always “risky”, he adds. The outcome can hinge on unpredictable factors, such as how a key witness performs on the day. Furthermore, the judge might get it wrong – which is why some cases are successfully appealed. Trials are inevitably “unpredictable”.
Mr Webb-Jenkins is keen to praise lawyers acting for claimants for the good work they do around “expectation management” in terms of what civil litigation can achieve for victims and survivors of child sexual abuse.
Prior to his current role as partner at Weightmans, Mr Webb-Jenkins previously worked at Browne Jacobson in their Nottingham office where initially he specialised in commercial litigation. However, during his time at Browne Jacobson, the North Wales Children’s Homes Group Action was a large and demanding case. It required “more hands on deck” which provided Mr Webb-Jenkins with an opportunity to try a different area of litigation.
This Group Action followed on from the £13 million investigation into physical and sexual abuse in care homes in North Wales between 1974 and 1990, which was led by retired High Court judge Sir Ronald Waterhouse QC and was published in 2000. It resulted in changes in policy in England and Wales into how authorities deal with children in care. The Group Action comprised roughly 150 claims by individuals.
“The vast majority were settled out of court, and only 11 claims were covered by the Court’s judgement,” he explained.
Once an individual makes an allegation of historic abuse, the organisation against which the allegation has been made may contact a defendant lawyer directly or go through their insurance company. Once instructed, the defendant lawyer will investigate the claim. It is not always straightforward, particularly given that some organisations accused of historical child abuse may no longer exist. Local government restructuring can lead to complications. Often cases go back many years, some as far back as the 1950s. Often the records are hand-written and need to be scanned.
“Finding records can be difficult, but once found, there are not usually difficulties over disclosing those records to the individual. All local authorities are very conscious of their obligations under the Data Protection Act” explained Mr Webb-Jenkins.
As a defendant solicitor, Mr Webb-Jenkins is not privy to any discussions that a victim or survivor may have with their claimant solicitor over what the victim wants to obtain from the Defendant, such as an acknowledgement and apology, explanation, or reassurances that policies and procedures have been improved.
“Some victims and survivors want an apology and increasingly defendants are prepared to provide an apology. Some want a meeting with the organisation so that their claim can be acknowledged and an apology given in person, and there can be discussion about how policies and procedures have been changed,” he explained.
“For others, they don’t want anything to do with that organisation, such is the experience they have gone through. It is all very person-specific,” he said, adding that 95% of claims he manages are dealt with out of court.
Talking about the abuse
On behalf of defendants, Mr Webb-Jenkins investigates both the claimant’s allegations, and how the abuse has affected the claimant. He explains one difficulty can be that where, for example, a child in a residential home alleges that a member of staff sexually abused them. It is unlikely to be documented or recorded anywhere as “it is usually not spoken about at the time”.
“This is quite understandable. Many victims say they were scared, intimidated, confused, embarrassed, or that the alleged abuser was an authority figure” said Mr Webb Jenkins. “The perpetrator is unlikely to disclose the abuse to anyone and there are usually no witnesses as the abuse is perpetrated deliberately secretively.”
As a result, the victim’s social care records may well not contain any reference to the alleged events. Furthermore, often there has not been a conviction, and when making the claim, the victim is disclosing for the first time abusive experiences that happened years or even decades ago.
Nevertheless the social care records would still be relevant to the victim’s background and the damage caused by the abuse. “The documents are still relevant and will be disclosed” said Mr Webb-Jenkins.
Redress schemes - less legalistic
Northern Ireland has introduced a Redress Scheme and The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill was published in August 2020. “There are two aspects: the political decision and the legal decision.”
“Northern Ireland introduced their Redress Scheme as a recommendation from their inquiry into historical and institutional abuse and it was a political decision to follow this through on this recommendation. In Scotland, the Redress Scheme was something that emerged from a consultation. And, again, it was a political decision to take the recommendation forwards.”
“Redress schemes usually have a quicker and less legalistic process than litigation, making it less intimidating for any applicant. Some are specifically designed to be “lawyer-free”. However, often the process is quicker and less legalistic because matters are not investigated in the same depth as in litigation. Assumptions are made” said Mr Webb-Jenkins. “For example, schemes often have a tariff which provides that a certain type of assault will result in a specific payment. This avoids the need to investigate how the assault has affected an individual applicant, which can take some time as well as being intrusive. However, and quite understandably, some victims and survivors don’t like an outcome where they are simply placed into a certain category, as they do not feel that it reflects their particular experience.”
“Usually, the sums of money awarded under a redress scheme are lower than in court. On the other hand, schemes often have a lower eligibility threshold that litigation” said Mr Webb-Jenkins.
Any redress scheme has to have limits. “So, for example, in Northern Ireland, the scheme covers abuse which occurred in residential establishments, and so a child in foster care who experienced abuse would not be eligible under the scheme. The Scottish scheme covers children in the care of the state, and so excludes children who are abused at home, and research tells us that most abuse happens at home to children who are not in the care of the state,” he said.
“Any redress scheme has to have limits. However, wherever you draw those limits, someone will fall just the other side, and often that feels unfair,” he added.
We are still waiting to see if IICSA will recommend a Redress Scheme for England and Wales, and if so, what the scope of that might be. Mr Webb-Jenkins thinks there is a fair chance that IICSA will recommend a redress scheme of some description. It will then be a political decision for the government.
Public policy argument
Whenever a redress scheme is being introduced, there are discussions with stakeholders over the scope of the scheme, and how it will operate. There can be quite a difference between the initial proposal, and the scheme which is finally put in place.
There is also the question as to who would fund a redress scheme. For the Scottish Redress Scheme, the Scottish government is seeking financial contributions from those organisations that were involved in the care of children at the time they were abused, but they cannot compel them.
“It is unlikely that insurance policies would cover any redress scheme for England and Wales. This may leave the taxpayer funding the scheme. For many that does not feel right, as it is not the taxpayer who is at fault. It is similar to the “moral hazard” argument that was raised when the government gave financial support in 2008 to banks who were perceived to have contributed to the crash. Ideally the person who perpetrated the abuse would pay the compensation – but often they do not have the means. Funding is often problematic, with no easy answers” he said.
The Scottish scheme proposes a waiver, whereby an organisation that makes a “fair and meaningful” contribution to the redress scheme could not face a subsequent compensation claim from a victim or survivor who had received a payment under the redress scheme.
“It is a pragmatic move,” said Mr Webb Jenkins. “The scheme is saying that if an organisation takes a step forward and makes a payment even though not obliged to, then in return it will be protected from a subsequent claim from the same individual. I can see the sense in it.”