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Blog: Child Abuse Litigation Service in Scotland

By Philip King, Executive Consultant, WillisPalmer

I would like to start by offering my very best wishes to readers in these very difficult and uncertain times. I hope you, your families and colleagues are keeping safe and well. At WillisPalmer we have worked hard in planning to ensure our staff are safe, and our service is running as close to normally as possible.

This blog focuses on significant developments regarding child abuse reparations in Scotland.

As some of you will know, for many years in Scotland survivors of child abuse had to make a civil compensation claim within three years of their sixteenth birthday. This time bar flew in the face of what we know about the nature and process of disclosure. Fortunately, in October 2017, the Scottish Government introduced the Limitation (Child Abuse) (Scotland) Act which removed the time bar (except where the abuse took place before 26th September 1964) and allowed civil action to take place according to the victims’/survivors’ needs rather than an arbitrary rule.

Given our experience of providing expert social work reports for claimants and defendants in child abuse litigation in England and Wales, WillisPalmer has recently recruited and trained a team of twelve highly experienced social workers in Scotland to undertake this work. The team have a range of experience including child protection, residential work, criminal justice, working with those with a disability, fostering and adoption.

Another important development from a few years ago was the setting up of the Scottish Child Abuse Inquiry which began in October 2015 as a response to overwhelming evidence of long-term, historic and systemic abuse of children in care in Scotland. The inquiry is chaired by Lady Smith who is a Judge of the Supreme Courts and has a long-standing interest in cases involving children and families. The inquiry is concerned with instances of abuse that "cover that period which is within living memory of any person who suffered such abuse, up until such date as the chair may determine, and in any event not beyond 17 December 2014". The Inquiry reports the outcome of its investigations to Scottish Ministers making recommendations including any changes to practices, policies and/or the law it considers are required for the protection of children in the future. More information can be found here.

Sitting alongside this inquiry has been the development of a Scottish Redress Scheme. Between 2016 and 2018, a consultation took place about the potential of a national redress scheme, which led to the then Deputy First Minister accepting the recommendations of the consultation in October 2018 and a commitment to a financial redress scheme. In April 2019, in recognition that some survivors were ageing and unwell, an Advanced Payment Scheme for the over seventies and the terminally ill was announced with a later consultation recommending an extension to the parameters set. More recently in September 2019, a twelve week consultation on the design and administration of the scheme, and other elements of reparation, took place. Although timescales can slip, especially in these uncertain times, it is planned for legislation to be introduced to parliament this year.

We obviously need to await this to see what the scheme will look like, but it seems that good basic principles underpin the scheme foundations including that it should not cause further harm to survivors. It is intended to be open for five years and cover historic abuse which took place before 01/12/04. I think an important facet of the proposed scheme is that there will be a choice between accepting a redress settlement or pursuing a civil claim after a survivor has had the benefit of legal advice. Also, the scheme is to be administered by a new public body independent of government. Another important point is that the scheme will include wider reparations such as acknowledgment and apology for the abuse and a range of support to be offered.

In respect of financial redress, there will be a two stage combination payment scheme. Stage 1 involves a flat rate payment whereas Stage 2 is an Individual Experience Payment. It will be interesting to see the mechanism by which Stage 2 payments are calculated. Our several years’ experience of involvement in the Lambeth Redress Scheme emphasised the importance of having an independent social work agency involved in the examination of records and the preparation of a chronology to allow a fair and just award to be made.

Looking to the future, the Independent Care Review set up by Nicola Sturgeon in 2017 is now reaching its final stages. Its aim is to identify and deliver lasting change in Scotland’s care system and leave a legacy that will transform the wellbeing of infants, children and young people.

The review found that £942m was spent each year by councils and agencies on the formal care system, including fostering, adoption, secure care and the youth justice system. There are about 15,000 children currently in the Scottish care system. Another £198m is spent on other public services linked to those services, including mental health provision. In addition, the review estimates a further £875m is spent on fixing the system’s mistakes and failings, leading to a total cost to the public sector of over £2bn.

The review has already called for a new unified children’s care service and strategy, based around a 10-year plan written by all the services and agencies involved in the current care system, which will need to be properly funded. This sort of transformation has apparently commanded strong political support. It is to be hoped that Scotland’s ambition for children and young people that ‘We grow up loved, safe, and respected so that we realise our full potential’ is realised.

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