Victims of child sexual abuse find the legal processes for seeking reparations as hostile, baffling, frustrating and futile, according to a report.
The accountability and reparations investigation by the Independent Inquiry into Child Sexual Abuse (IICSA) heard victims describe the variety of bafflement and distress they endured in attempting to attain their remedies at law.
One witness (ciphered as AR-A21) described his experience of giving evidence in civil proceedings: “At the time, I thought – and the way the trial proceeded, it just felt like another case of somebody saying, ‘Well, are you sure you’re telling the truth?’, sort of thing, and it’s that feeling of, ‘Well, is it really pointless – is there really any point carrying on?’ … It’s embarrassing, and it was like reliving again everything that had gone on. It’s something that – I think a lot of people would be reluctant to do it to relative strangers, and that’s what makes it difficult … ”
The accountability and reparations public hearing took evidence from 40 witnesses between November 2018 and January 2019. Victims and survivors described child sexual abuse and its aftermath spanning a period of nearly 60 years from the 1960s to the present day in five case studies: Forde Park Approved School in Devon, Stanhope Castle Approved School in County Durham, St Leonard’s children’s home in Essex, North Wales children’s homes, and St Aidan’s Approved School in Widnes, Cheshire and St Vincent’s Approved School in Merseyside.
Complexity
In England and Wales, the law has a variety of ways for perpetrators of child sexual abuse to be held to account under criminal law and in civil law.
A victim or complainant may be seeking punishment of the perpetrator, compensation from an individual or institution, acknowledgement that the abuse occurred, an apology, an explanation of how the abuse was allowed to happen, an assurance of non-recurrence, and counselling or other support
A crime report to the police could result in a Criminal Injuries Compensation Authority (CICA) award, prosecution, conviction and imprisonment of the perpetrator and/or a criminal compensation order (CCO). A criminal complaint must be proved to a high standard – beyond reasonable doubt – and there is no time limit for the complaint to be made.
A complaint via civil law is usually for compensation from an institution which has legal responsibility for the perpetrator. The civil law complaint may be proved to a lower standard – the balance of probabilities – but must usually be brought within a limited time period of three years from the abuse or the 18th birthday of the complainant. The complainant will often find out after initiating a civil law claim that the opposing party is not the named institution but the institution’s public liability insurer.
Victims can go through both the criminal law route of the perpetrator as well as the civil law route to compensation as both are distinct legal processes, each with their own intricacies. However, when both civil and criminal processes are pursued concurrently and in parallel, complexity is added and further complication is added when the law, practice and procedure are altered during the course of proceedings.
Unfairly treated
The hearing heard from victims who told how they:
- Became embroiled in litigation which spanned decades
- Their cases had been brought against the wrong defendant
- They felt they were treated unfairly in court
- They had successfully proved their case on the facts but they could have no remedy due to the operation of the law of limitation.
Civil justice in England and Wales is adversarial and governed by the legal principles and procedures applicable to all personal injury litigants, not just victims and survivors of child sexual abuse. Therefore, victims and survivors are often left re-traumatised by the process, including the experience of the "day in court" that so many of them seek.
The Inquiry heard that the police do not always actively signpost victims and survivors to seek legal advice about potential civil claims. Firstly, the police have not seen it as their responsibility to do so, but also there are concerns that any criminal proceedings against the abusers may be undermined by accusations that the victims and survivors have fabricated allegations to obtain compensation.
Survivors want to be believed
Approaches towards this issue varied between the police forces that gave evidence to the inquiry. Some forces – such as North Wales Police and Durham Constabulary – have no guidance or policies on signposting the possibility of civil claims and so whether or not they do signpost victims and survivors is left to the discretion of individual officers. Other forces - for example Cheshire Constabulary – provide training to police officers about sign-posting victims.
Not all victims and survivors who gave evidence to the Inquiry chose to bring civil claims. For those who did not initiate any litigation, their main concern was that they would not be believed. Victims and survivors who did decide to bring claims all had several different reasons, which was often not about financial compensation - the more fundamental purpose of a civil claim. Although financial compensation was an important objective for some, it was rarely the primary motivation.
Many victims and survivors wanted some form of justice; some wanted the truth about the abuse to come out while others wanted recognition that they were abused, to be believed, or to be vindicated for being called a liar for many years.
The Inquiry heard that many victims and survivors wanted "their day in court" and many wanted an apology from the relevant institution.
Although a number of victims and survivors told the Inquiry that they wanted to give evidence at trial, the actual experience of doing so is invariably very difficult for them. As Paul Durkin, a solicitor who represented claimants in the St Aidan’s and St Vincent’s litigation, said: “Some clients say they want their day in court, but I know that they don’t want their day in court because it’s such a rigorous forensic process.
It’s probably the last thing that they want to face, in reality."
Unfair to victims
The Limitation Act 1980 imposes time limits, known as limitation periods, within which claimants must bring their claims. In 2008, the House of Lords decided in A v Hoare that the extendable three-year limitation period for personal injury claims should apply to all claims of sexual abuse. This period runs from either the date when the injury occurred or the date of knowledge of the individual claimant. However, in all cases involving children, the limitation period does not start to run until the claimant reaches adulthood at the age of 18. All claimants therefore have until at least the age of 21 to start legal proceedings.
Despite these developments in the law, the Inquiry heard that one of the most challenging legal issues for victims and survivors of non-recent child sexual abuse is still the limitation period. Very few victims and survivors of child sexual abuse bring their claims before the age of 21. Consequently, if the defence of limitation is raised by the defendant, they must ask the court to exercise its discretion under Section 33 of the Limitation Act to allow their claims to proceed.
In deciding whether or not to exercise its discretion, the court must consider all of the circumstances of the individual case including the length of, and reasons for, the delay in bringing a claim and the extent to which the evidence is less cogent than if the claim had been brought within time.
A number of claimant representatives felt that the law of limitation was unfair to victims and survivors of child sexual abuse, and that it should be changed.
Questioned robustly
The victim or survivor may face cross-examination in court over the events. Where the facts of a claimant’s sexual abuse, or its effects, are in dispute, the claimant will be asked to give evidence at trial. The claimant will set out their case in a written statement and, if the judge agrees, this may be supplemented by oral evidence in response to questions from the claimant’s own barrister, known as examination-in-chief.
The claimant will then be questioned by the barrister for the defendant or in some cases the defendant perpetrator himself. During this cross‑examination, the claimant will usually be challenged on all of those parts of the evidence that the defendant does not accept.
However, the civil courts, unlike the criminal courts, do not have special rules governing the questioning of vulnerable witnesses such as victims of child sexual abuse. Claimants are treated like any other personal injury claimant. They may therefore be questioned robustly and in detail about their experiences before, during and after their abuse, with the intention of undermining some or all of their accounts.
The experience of AR-A23 and other claimants in the Bryn Alyn litigation exemplifies how difficult it can be for victims and surviviors of child sexual abuse to give evidence in the civil courts. The Bryn Alyn claims proceeded to trial in early 2001. The defendant’s insurer, RSA, did not advance a positive case in relation to the fact of the abuse (except in one case) but conceded very few issues and still required each claimant to prove every element of their claim. This made AR-A23 feel like she was “being abused all over again” as she had to “relive everything, in intimate detail”.
Reliving everything that went on
The claimants were cross-examined about the issue of causation, namely factors other than their abuse that may have caused their psychiatric injuries. Claimants were also questioned about their credibility, their disclosure of the abuse, their date of knowledge for the purposes of limitation and the management of the school.
While AR-A21 now feels that the experience was therapeutic, at the time the prospect of giving evidence was “daunting”. The psychiatrist in the case noted that AR-A21 became more agitated as the trial approached and AR-A21 himself explained that this was because giving evidence required him to re-open painful memories: “You’re sort of reliving that thing over and over again, and each time it became more painful to do so.”
Those claimants who gave evidence explained how it felt to have to speak about their experiences. AR-A23 and AR-A29 both said it was “horrible”. AR-A21 said that it was “embarrassing, and it was like reliving again everything that had gone on”.
Some felt the direction of the questions were suggested that the claimants were lying about the abuse. Even though the question of whether the abuse occurred was not actually disputed, the process of giving evidence exposed and re-ignited a fear of not being believed.
The CPR encourages early settlement of claims. Settlement removes the risk of a claim being rejected by the courts and avoids victims and survivors having to suffer the stress and trauma of a contested trial. But claimants may still be left dissatisfied by both the process of settlement and its outcome, ie the payment of compensation without judgment and accountability.
Some but not all victims and survivors were unhappy with the amount of compensation that they were awarded. AR-A41 received in the region of £50,000 and compared his compensation to the amount expected for a broken leg.
Many victims and survivors had brought civil proceedings hoping for an apology, an explanation and acceptance of responsibility. However, the claims were settled without an admission of liability and the lawyers told the Inquiry that, in such circumstances, it would have been difficult to obtain an apology from the defendant through the civil claims process. A number of victims and survivors were, and continue to be, extremely disappointed by this.
"It is clear from the evidence that we heard that the claimants’ legal team worked hard to secure favourable settlements for all of their clients. That some victims and survivors nevertheless felt dissatisfied with the process and its outcome illustrates how the civil justice system cannot always provide satisfactory accountability and reparation for claimants," said the report.
Apologies
The length of time to conclude claims can vary depending on a number of factors such as whether the claims proceed to trial, the number of issues in dispute and the level of case management by the court. The Bryn Alyn claims and the St Aidan’s and St Vincent’s claims are examples of particularly protracted litigation. In both cases, the litigation first began in the late 1990s and did not conclude until around 2010.
The primary purpose of civil claims for child sexual abuse is to obtain financial compensation. The courts cannot order defendants to give apologies or explanations for the abuse or assurances that it will not happen again. However, victims and survivors repeatedly stressed the importance of receiving genuine and meaningful apologies from the institutions they saw as responsible for their abuse.
For some victims and survivors, apologies were said to be more important than compensation. AR-A24 said “I now realise that an apology or acceptance for what I had been through is worth more than any amount of compensation.”
Criminal compensation orders (CCOs) are rarely made by the courts in child sexual abuse cases. Victims and survivors may be prevented from receiving awards from the CICA due to criminal offending, even where the offending is attributable to the abuse they suffered.
A criminal compensation order (CCO) requires a person convicted of an offence to pay money to the victim of that offence for personal injury, loss or damage arising from it. Recent data provided by the Ministry of Justice show that only around 0.02 per cent of CCOs relate to child sexual abuse cases.
The Crown Prosecution Service’s view is that applications for CCOs are normally based on loss or damage that is easily quantifiable, such as theft or criminal damage. Convictions arising out of child sexual abuse are less likely to lead to CCOs because they are more difficult to quantify and a remedy is more likely to come from other avenues, such as civil claims or the CICA.
However, a number of victims and survivors were not sure about the process of making a CICA claim, or doubted whether they could be successful.
AR-A79 did not make an application for criminal compensation as he was not sure how to make such a claim and was sceptical that he would be believed.
There is a range of tariffs for sexual offences against children, based on the seriousness of the offence and the impact on the victim. The levels of awards have increased over the years, but they are still modest. The current level extends from £1,000 for minor, non-penetrative, sexual, physical act(s) over clothing, to £11,000 for one incident of non‑consensual penile penetration of the vagina, anus or mouth (with an increase for repeated incidents up to £22,000). Where the abuse results in serious mental and physical illness, awards can go up to £44,000.
Support services
Many victims and survivors of child sexual abuse find that they need support services during the often traumatic experience of seeking accountability and reparations. This may include specialist advocacy services, medical services, mental health services and therapeutic services, in either the state, private or voluntary sectors.
The inquiry heard consistently that victims and survivors of child sexual abuse struggle to access the right support at the right time. Nigel O’Mara, a counsellor, said that while there have been support services available for women for some time, the development of services for men has occurred more recently and, as a result, there was a lack of coverage and organisation within male services.
The need for adequate psychological support and counselling during civil claims was raised by many of the victims and survivors who gave evidence. Remembering and reliving the experiences of abuse in order to provide evidence in a civil claim is inevitably a painful experience. AR-A23 warned that he believed that many people do not come forward and discuss their experiences of abuse in part because of the inadequacy of support services.
However, the experience of victims and survivors in terms of accessing therapeutic support during civil claims was generally poor. Many went through the process with no professional therapeutic support.
Not all victims and survivors wanted therapy, and some worried whether they could cope with it. Malcolm Johnson, a lawyer representing claimants, told the Inquiry that in his experience the majority of child abuse survivors are “remarkably robust”.
Redress scheme
Over the last 20 years there have, however, been significant changes in the provision of support during criminal investigations, with a welcome movement by police forces towards prioritising the needs of victims and survivors.
The Victims’ Code is under review by the government. The Victims Strategy, published in September 2018, aims to set out the government’s intention to update, make more accessible and increase awareness of the Victims’ Code.
The Inquiry has heard evidence that a redress scheme would be a possible alternative to the existing systems of criminal and civil compensation. This would enable victims and survivors of child sexual abuse to obtain compensation for the abuse they have suffered. It may also have the flexibility to facilitate apologies, fund or direct victims and survivors to support services, and avoid the difficulties of civil litigation.
A redress scheme is generally an independent, non-adversarial forum in which applications for financial compensation are considered. It is usually administered on the basis of paper applications alone but may include psychiatric assessments.
The majority of those who provided evidence to the Inquiry said that both civil claims and the CICA are not suitable for victims and survivors of child sexual abuse and can have a damaging impact.
Witnesses told the Inquiry that there are a number of potentially important components to an effective redress scheme:
- Compensation
- The facilitation of apologies and an acknowledgement of failure
- Prevention of continuing abuse
- Counselling or other treatment
- A non-adversarial system
- Speed
None of the avenues provide adequate remedies
As the IICSA investigation spans the period from the 1960s to the present day, the law, practice and procedure for the conduct of sexual abuse cases in the criminal courts and in the civil courts has evolved in important respects. Legal and other professional witnesses, including barristers, solicitors, senior police officers from the local police forces that investigated the relevant institutions, insurance companies, the Association of British Insurers, the Ministry of Justice, the CICA and charities that provide support to victims of sexual violence gave their experiences of some systemic failings and recommendations for improvement. Some of the failings which were identified are already addressed by recommendations made by the Inquiry in their Interim Report published in April 2018.
Some proposals are still under consideration and are due for further consideration by the Inquiry later this year. One proposal is a redress scheme to enable victims and survivors of child sexual abuse to obtain accountability and reparations. Another proposal under consideration is for the law of limitation in civil proceedings to be reformed to make it easier for victims and survivors to bring civil claims for non-recent child sexual abuse.
The Inquiry cannot redesign the systems of civil justice and criminal compensation in order that each and every element of accountability and reparations identified is deliverable to victims and survivors of child sexual abuse. However, it can consider improvements to the operation of these systems for those victims and survivors of child sexual abuse who continue to seek accountability and reparations through them. The aim of the investigation has been to try and find how the legal processes may be made fairer and more effective for victims and survivors of child sexual abuse.
"The evidence which has been heard in this investigation leaves no doubt that none of the avenues for redress which we have examined – civil justice, criminal compensation (CCOs and CICA awards) or support services – is always able to adequately provide the remedies which are sought as accountability and reparations for victims and survivors of sexual abuse," the report said.
"Accountability and reparations for child sexual abuse takes many different forms – including punishing offenders, holding institutions to account, acknowledging abuse and providing apologies, explanations and assurances of non-recurrence, redress (including financial compensation) and support," it added.
"None of the systems under examination in this investigation – civil justice, criminal compensation or support services – is designed to deliver all of these objectives. However,the operation of those systems could be improved so that they become more effective at delivering accountability and reparations for victims and survivors," the report concluded.
Victims should be signposted by police
The report makes a number of recommendations. It states that the Ministry of Justice should revise the Victims’ Code to make clear that victims and survivors of child sexual abuse must be advised by the police that:
1. They are entitled to seek civil compensation through the civil courts and, if they wish to do so, should seek legal advice. They should be signposted to specialist lawyers identified by the Ministry of Justice.
2. They are entitled to assistance completing any application to the CICA, should they require it. Such assistance should be provided by independent sexual violence advisers or other suitably qualified and trained persons.
3. At the conclusion of any criminal proceedings, the court may make orders for the payment of criminal compensation by convicted offenders to their victims.
4. They are entitled to be referred to organisations supporting victims of sexual abuse.
Victims and survivors should also be signposted to the support services available in their local area.
The College of Policing should changes its guidance Authorised Professional Practice to require police officers to provide oral and written information on each of these matters.
The Ministry of Justice should also provide further information on how the new compliance framework, and any other developments, will improve compliance with the Code for victims and survivors of child sexual abuse.
The civil justice system
The Local Government Association and the Association of British Insurers should each produce codes of practice for responding to civil claims of child sexual abuse. The codes should include recognition of the long-term emotional and psychiatric or psychological effects of child sexual abuse on victims and survivors, and acknowledgement that these effects may make it difficult for victims and survivors to disclose that they have been sexually abused and to initiate civil claims for that abuse.
The codes should also include guidance that:
1. claimants should be treated sensitively throughout the litigation process;
2. the defence of limitation should only be used in exceptional circumstances;
3. single experts jointly instructed by both parties should be considered for the assessment of the claimants’ psychiatric, psychological or physical injuries; and
4. wherever possible, claimants should be offered apologies, acknowledgement, redress and support.
The report also recommends that the government should introduce legislation revising the Compensation Act 2006 to clarify that section 2 facilitates apologies or offers of treatment or other redress to victims and survivors of child sexual abuse by institutions that may be vicariously liable for the actions or omissions of other persons, including the perpetrators.
The Department for Work and Pensions should work with the Association of British Insurers to introduce a national register of public liability insurance policies. The register should provide details of the relevant organisation, the name of the insurer, all relevant contact details, the period of cover, and the insurance limit. These requirements should apply to policies issued and renewed after the commencement
of the register, and those against which a claim has already been made.
The Financial Conduct Authority should make the necessary regulatory changes to compel insurers that provide public liability insurance to retain and publish details of all current policies.
The Judicial College should revise its Guidelines for the Assessment of General Damages in Personal Injury Cases to include a freestanding section on the damages that may be appropriate in cases of child sexual abuse. This new section of the guidelines should advise the court to take into account the nature and severity of the abuse itself, any short-term and long-term physical, emotional and psychiatric or psychological injuries, and the general effect of the abuse on the claimant’s capacity to function throughout their life. The latter may include the ability to sustain personal and sexual relationships, to benefit from education and to undertake paid employment.
Criminal compensation orders (CCOs)
The Ministry of Justice should consult with the Sentencing Council, the Judicial College, the Crown Prosecution Service and other relevant bodies, in order to increase the use of CCOs, where appropriate, in cases involving child sexual abuse by, among other things, implementing guidance for the judiciary and prosecutors in the Crown Courts and Magistrates’ Courts.
Support through civil proceedings
Finally, the International Underwriting Association of London should take the lead in the production of a code for the benefit of claimants who are bringing civil claims for child sexual abuse. The aim should be to produce a code, comparable to the Rehabilitation Code or for inclusion in that code, with the objective of ensuring that victims and survivors of child sexual abuse are able to access the therapy and support they need as soon as possible.
"The effects of child sexual abuse on victims and survivors can be lifelong and devastating. Defendants, including local authorities and insurers, must take this into account when responding to civil claims, together with the fact that claimants may struggle to disclose details of their abuse and to initiate and engage with the process of litigation. Claimants should be treated with sensitivity and defendants should recognise that the provision of explanations, apologies, reassurance and access to specialist therapy and support may be as important (or more important) to them than the receipt of financial compensation," the report concludes.
Independent Inquiry into Child Sexual Abuse Accountability and Reparations report
