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Expert’s Corner with David McClenaghan

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David McClenaghan is Partner & Solicitor-Advocate, Higher Courts Civil Proceedings, at Bolt Burdon Kemp and head of the child abuse team. Here he explains his role in helping survivors of abuse to come to terms with their experiences.

One of the high points of David McClenaghan’s career so far has been helping a survivor of child sexual abuse to secure compensation of over £500,000. A further celebration in his legal career to date has been securing compensation for a girl who was encouraged to send nude photographs of herself to a teacher and engage in ‘sexting’ – the first case of its kind – and pushing the boundaries in modern-day laws around abuse.

David McClenaghan is head of the abuse department at Bolt Burdon Kemp. He joined the firm in 2010 and became partner in 2015. David previously worked with clients who had industrial diseases such as asbestosis before specialising in child sexual abuse at BBK.

The Child Abuse Team brings claims on behalf of people who have suffered abuse, sometimes physical but often sexual. He has successfully brought claims on behalf of clients who have suffered abuse at the hands of Scout leaders, Boys’ Brigade Captains, Cadet leaders, clergymen, youth club leaders, teachers, doctors, sports coaches, foster carers, care home staff and family members.

As a solicitor advocate, David also has permission to appear in all courts and regularly appears in the High Court on behalf of his clients.

“The Child Abuse Team is working on 400 cases at any one time,” explains David. “When I joined in 2010 there were three lawyers in the team; there are now 18. That shows you how much more prevalent these cases have become.”

David attributes this growth in survivors of child abuse to Operation Yewtree and the Jimmy Savile case which dominated media reports for months. “There has been more reporting on these issues by the media when they were probably more taboo before with stigma that people were just coming forward ‘for the money’. This stigma has been broken thanks to improved media reporting,” he adds.

‘Six sessions of CBT is not realistic for survivors of abuse’

Cases can be brought against an organisation such as a local authority or public school or against an individual. David and his team work with survivors across the UK and take on some international cases too, for example, whereby people have been sent abroad by an employer and experienced abuse.

“Often people bring compensation claims because they need medical treatment such as Cognitive Behavioural Therapy which they have difficulties accessing on the NHS. Some clients may have been offered treatment but six sessions of CBT on the NHS is not realistic when these people have lived with the aftermath of abuse for 25-30 years and it has affected all aspects of their life from relationships to education and employment opportunities,” explains David.

“Other people want to hold their abusers to account, particularly if the case has gone through the criminal courts and the sentence has been paltry,” he adds. “One client for example, was abused by her grandfather for five years yet he received a four year sentence of which he will serve only two years. Seeking compensation then becomes a motivating factor.”

In fact 85% of the team’s clients involve cases of historic child sexual abuse. Unfortunately, the criminal sentencing is dictated by when the abuse took place so if someone was abused in the 1970’s, then 1970’s sentencing guidelines would be applied to the case and guidelines were somewhat more lenient back then with far fewer cases and less known about abuse. In modern day cases, however, sentences are stricter.

The process of a claim becomes much easier if there is already a conviction and in 80% of cases that BBK work with, there has already been a conviction. In the remainder of cases, the abuser was maybe unfit to stand trial due to health reasons or may now be dead.

Last resort measure

The client can go down one of two routes: a case through the civil courts or a case through the government-funded Criminal Injuries Compensation Authority which pays compensation to people who have suffered violent or sexual crime. Often, survivors of abuse will make an application to the CICA when a civil claim is not possible because the person who abused them does not have sufficient assets or money to pay compensation, or where the person who abused them is no longer alive. The CICA assesses all applications and award compensation to successful applicants under the Criminal Injuries Compensation Scheme 2012 and BBK can support clients through this. Often they will act for survivors in appeals where an initial application has been rejected by the CICA.

For example, in one case, a 13-year-old girl was taken to a park by her abuser, plied with copious amounts of alcohol before she was sexually abused but CICA argued that she had consented to intercourse and therefore it did not award her compensation. BBK got the decision over-turned, but it still meant that the victim had to go to trial and give evidence which, David explains, “is not helpful and re-traumatising”.

It is for that reason that cases under CICA are often seen as a “last resort” measure and the majority will go through the civil courts where possible.

Psychological harm

In a typical case, a client will contact BBK through their website and David and his colleagues would take the initial inquiry and ask to see any documentary evidence they have such as medical notes to ascertain if there is a case. They would then meet the client at a venue of their choice where they feel most comfortable talking about a very distressing time in their lives. David says the number one priority is ensuring the clients feel comfortable and he explains to them about the whole process, how long it might take and sets out risks and difficulties they may face and the fact that there are no guarantees so the survivor is clear from the outset what to expect. In the majority of cases, though, people who have made that initial inquiry have made their minds up that they want to go ahead with the case, says David.

David would then send out a letter setting out the allegations to the defendant who has three weeks to respond and acknowledge the letter and three months to admit or deny the allegations. During that time, David will make a case for his client and gathers evidence. The client would see a psychiatrist to provide medical evidence that they have experienced psychological harm as a result of the abuse.

If the abuser admits liability, then the case takes much less time and negotiations would begin for an amount of compensation. The issue would be settled out of court unless the abuser and the victim’s representatives fail to agree on an amount for compensation and then it would go to court and a judge would make a decision. David explains that a client of his was awarded far more than was being offered by the abuser in a recent case involving the Scouts showing that it can be beneficial to take it to court.

If the abuser denies the allegation, David would issue court proceedings and the court would issue the parties directions time-table. This could mean the case leading up to a trial could be a year or up to two years from the initial inquiry. Although in 80% of cases there has been a conviction which makes things easier, the defendant could still deny liability for many reasons: they could deny the abuse took place, they could say they don’t know if it took place and it would have to be proved, they could acknowledge that the abuse took place but say the abuser was not their responsibility (for example, an organisation may say that if the abuser was a volunteer rather than a member of staff, he was not their responsibility). The abuser may deny liability to start with but still settle the case before it goes to trial, using this as a bargaining chip to offer less compensation. In fact David says that 99% of cases don’t go to trial.

Not everything is text book

There is also a further complication: the limitation period – or time period which can be used   as a defence. It means the case has to be brought within three years of the abuse happening or, if the abuse happened when the survivor was a child, within three years of them turning 18. If the case is outside the limitation period as is the case with 95% of the cases that David deals with, then the judge has to be asked if the case can go ahead. Judges do, however, recognise that abuse can take a long time to come to light, given the emotional distress caused and the concern by many victims over being believed that the abuse took place.

David explains that he has never had a case where a client has just had enough half way through the case and stopped it. However, the client always dictates how involved they want to be, said David, as some want to be kept updated on everything that occurs whereas others want keeping in the loop on a need-to-know basis. “Although those clients are often happier to talk things through during the case once initial trust has been established, explains David.

It is for those reasons that as well as looking for “bright, great lawyers,” he would also want members of his team to possess excellent skills in sensitivity, empathy and soft people skills to enable survivors to open up about what they have experienced. Flexibility is also key in his role as survivors are supported 24/7 should they need anything with client care being their number one priority. Clients will be provided with their lawyer’s direct phone and mobile numbers and email address so that they always have 24/7 access to someone should they need it.  “I also look for creative people as this area of the law is quite new so not everything is in the text-book. You can push the boundaries of the law and I therefore look for creative and innovative lawyers for the team,” says David.

It is the first time a judge has awarded compensation for sexting

It is this that attracted him to specialise in this area of law. “You can help people and really make a difference to their lives. We get family members coming to us after the case telling us just how much the client has changed following the case and that life is so much better for them,” he says.
“But also from a legal perspective, the law changed in 2008 and is constantly changing and so you are adding a little bit of something each time you go to court,” he added. The ‘sexting’ case is a fine example of this and was truly ground-breaking in terms of pushing the boundaries around non-contact abuse.

In the ABC v West Heath 2000 (1) Whillock (2) case, the client claimed compensation from her school and her teacher William Whillock after she alleged that Whillock had:
•    groomed her;
•    encouraged her to send indecent images of herself to him; and
•    encouraged her to exchange text messages of a sexual content.

All of which eventually led to him seriously sexually assaulting her. As a result, the client suffered serious psychiatric harm. The judge awarded her £35,000 for both the sexual assaults and the sexting, but significantly he said that if this had been a case where there had been no sexual assaults and was limited to sexting, he would still have awarded her £25,000.

It is the very first time a judge has made an award of compensation specifically for the harm suffered as a result of the sexting and David said it “opens the door” for other clients to claim compensation such as those who have been the victim of revenge porn. “Now, physical contact does not have to take place for compensation to be awarded if the victim experienced psychological harm as a result,” explains David.

As well as success in pushing the boundaries of the law, David has 100% success rate in trials and a 100% success rate in overturning CICA decisions as well as pretty much a 100% success rate for compensation cases aside from a handful of cases where BBK advised the clients not to continue after they began the initial investigation.

Justice

Whereas CICA pays compensation of between £20 and £25K, those that go through the civil courts can receive compensation of between £5K and £115K for abuse claims and are typically around £30-£60K, says David. However, where survivors have not only experienced abuse, but missed out on educational or employment opportunities as a result of the psychological harm caused by the abuse, the figures are much higher.

“We are making a claim for compensation through the CICA for a client of £200K after she dropped out of school due to the psychological impact the abuse had on her,” says David. He is also working with a man who was a high-earner and who experienced a total breakdown when his case went to court and who has been out of work for five to six years as a result. “His claim for loss of earnings is well into the millions of pounds,” he added.

David thinks the sexting case is going to have a huge impact on the law with similar cases coming forward in this area, revenge pornography and cat-fishing. “It’s pretty significant,” he explains. He adds that a Panorama team recently spent some time at BBK as part of their documentary into abuse in the Army Cadets and as a result, around 200 initial enquiries from people who have been affected by this issue have been received.

“Raising awareness like this and showing people that they are not the only ones gives them the courage to come forwards and can lead to justice and further convictions against people still working with children, he added.

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