Progressive nature of Scottish government in terms of child abuse risks being undermined

Progressive nature of Scottish government in terms of child abuse risks being undermined

Kim Leslie is a partner at Digby Brown solicitors in Edinburgh, having worked for the firm for 20 years. Kim’s specialism is non-accidental injury, and in particular, historical abuse cases as well as CICA claims and stalking. She is accredited with the Law Society in Scotland and as a Senior Litigator by the Association of Personal Injury Lawyers (APIL). Kim is also an executive director at the Association of Child Abuse Lawyers (ACAL) – a group of specialists in the field which increases awareness of historic abuse and helps other solicitors doing this area of work. ACAL campaign on issues and respond to consultations on the topic of historic abuse.

The progressive nature of the Scottish Government in terms of historic child abuse risks being undermined by certain clauses within its Redress Bill, currently going through Parliament, an expert solicitor in historic abuse cases has warned.

Kim reminds us that when the Scottish Parliament introduced the Limitation (Childhood Abuse) (Scotland) Act 2017 in 2017, it was heralded as a progressive step, and a model that other legal systems may, in time, adopt.

The legislation reverses the burden of proof to the defender relative to time bar in child abuse cases. As a result, a victim of child abuse may bring a claim at any time and a limitation defence will only succeed if the defender is able to satisfy the court that they cannot get a fair trial which is a breach of their human rights or the retrospective application of the legislation means that they are substantially prejudiced.

Lifelong psychiatric injury

Prior to its introduction, children who may have experienced abuse had to make a claim within three years of reaching 16-years of age. As in England and Wales, the Scottish judiciary had the opportunity to allow cases to proceed after the victim turned 19, but this usually ruled in favour of the defender and thus created a real possibility of prejudice towards victims and survivors.

“In 2017, the Scottish government took real leadership and did the right thing by survivors and the legislation recognised that the law had failed a generation of survivors,” said Ms Leslie, adding that the vast majority of survivors do not disclose abuse until way into adulthood and so for many people coming to court, it was too late. Furthermore, claimants did not have to explain the delay in going to court.

Ms Leslie does not use the term ‘survivors’ lightly. While recognising that many victims and survivors show immense resilience given their experience and go on to lead successful, stable lives, she adds: “The effects of childhood trauma can cast a long shadow for many survivors. Survivors of childhood sexual abuse often experience lifelong psychiatric injury,”

Before the reform Scottish victims of childhood abuse who attempted to bring civil damages claims were almost universally met with the defence that their claims were time barred. Whilst there was discretionary power for Scottish Judges to allow cases to proceed, albeit out of time, it was rarely exercised in favour of the claimant. The legislative changes signified a policy shift and came into force in October 2017. Defendants ‘almost universally’ use the defences that they will not receive a fair trial or their case will be prejudiced, but it is now down to the defender to convince the judge of this rather than the onus being on the survivor.

Life changing results

Ms Leslie worked in various departments within Digby Brown over the last 20 years, however, she has been undertaking non-accidental work for many years. In February 2017, in anticipation of the legislative changes which came into force that October, she began focusing entirely on non-accidental injury cases and around half of these cases are historical abuse cases.

“One of my driving forces is to help others. This area of work has been the most challenging but the most rewarding in my career. I can achieve life changing results for individuals,” she explains.

Ms Leslie is someone who victims and survivors open up to. In many cases when she speaks with a new client it may be the first time a survivor has ever disclosed the abuse.

“Each individual case requires a different outcome, but you hear all the time that it is not just about the money. For some people, it is important to get closure, for others it is accountability and being believed,” said Ms Leslie.

Roadmap for psychiatric treatment

The IICSA report into accountability and reparations reiterates that victims and survivors want a variety of outcomes from an apology, to their day in court, from acknowledgement and recognition to being believed.

As the majority of her cases settle out of court by negotiation, Ms Leslie can request anything from enabling her client to meet with the chief executive of the organisation where they were abused to receiving an acknowledgement or apology.

However, while money may not be forefront of the victims’ minds, it is something Ms Leslie wants to secure for them. “When we take a case on, we pay for the survivor to be medically examined by a psychiatrist who then has access to their medical history and social work records. The psychiatrist produces a report outlining the consequences of childhood trauma and a roadmap for psychiatric treatment.”

The report will reveal a spectrum of effects that the abuse has caused from anxiety, depression, PTSD, risky behaviour, criminalisation. “When people are abused in childhood it influences them developmentally,” says Ms Leslie.

Furthermore, if someone is struggling financially, they are not in the optimal place to heal from their abuse. Digby Brown will signpost survivors towards help and services but at the same time they want to enable financial stability for them. They want to ensure they have the financial security to access therapy should they require it. As Ms Leslie explains, many individuals will have had their career or relationships detrimentally affected by their abuse and she seeks the financial outcome to enable them to heal.

Financial Redress

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill was published in August 2020, in recognition that many children in care in Scotland in the past were not treated with love or with respect. They were abused by those responsible for their care.

Survivors of historical abuse in care have campaigned for redress, and want to be listened to, heard and believed. Making redress payments is an important part of dealing with the wrongs of the past.

The Bill aims to provide practical recognition of the harm caused by historical child abuse in care in Scotland. As well as the Bill, other actions are being taken to support survivors of historical child abuse including apologies and other forms of support.

Organisations which were responsible for the care of children at the time of the abuse are being asked to contribute to the scheme. This is what survivors have said that they want and it also allows those organisations to help deal with the wrongs of the past.

Under the Bill, survivors of historical child abuse in care in Scotland will have the opportunity to apply for financial redress payments of up to £80,000. Survivors can apply for a fixed rate redress payment of £10,000 or an individually assessed redress payment which will involve a more detailed examination of their experience. The individually assessed redress payment levels are set at £20,000, £40,000 or £80,000. The Bill seeks to provide tangible recognition of the harm caused to those who were abused as children in relevant residential care settings before 1 December 2004.

It may offer a faster alternative to the civil court process and access to elements of non-financial redress including therapeutic support and in some circumstances, next of kin of deceased survivors will be able to apply for a redress payment of £10,000.

Society’s Shame

Ms Leslie said: “The Scottish Government sees this as part of a package of measures to support and provide financial redress to survivors of abuse. This is Society’s Shame and of course a scheme to provide financial redress is welcomed. For some people, this might be the only route, for example those born prior to 1964 which is not covered by the legislation.”

However, she has a number of concerns. In the redress scheme, survivors may have to show some evidence which corroborates the abuse took place, such as police witness statements. While this may well be in the capability of some survivors, it may not be straightforward for others. “Accessing documents is not easy,” explains Ms Leslie. “Can you expect survivors of abuse to recover documents, some of which they may have never seen before detailing what has happened to them?”

The main area of concern for Ms Leslie is the idea that the redress scheme would introduce a waiver – whereby survivors would have to sign away any future civil damages claims. According to Ms Leslie, the government claims that they need to incentivise contributors such as charities, local authorities and religious organisations to contribute to the redress scheme and if there is no waiver and survivors could potentially make a future claim, then contributors would be reluctant to contribute.

Yet, Ms Leslie says that it has been commented upon by some who heard evidence from at the first stage of the Bill “there did not appear to be any real evidence that the waiver was an incentive for contributors”.

“The applicant may not have sought legal advice prior to submission of an application for redress. As the Bill is currently framed the offer from Redress Scotland is valid for 12 weeks for acceptance and it is only at the offer stage that the applicant will be “strongly encouraged” to seek legal advice on the offer, which is conditional upon a waiver being signed.

“This is an abhorrent ultimatum. It is simply disgraceful and appears to fly in the face of the progressive steps taken so far by the Scottish Parliament. On a practical level twelve weeks is clearly an inadequate timeframe for proper consideration and informed specialist legal advice to be given for such a major step as signing away legal rights for all time coming,” Ms Leslie added.

Far from clear

She adds that the draftsman of the Bill may assume that the applicant will face a relatively straightforward choice, however, the number of cases where there will be a clear and obvious choice at the outset is likely to be small. There will be those where there are no prospects of success in a civil case, where for example, the abuse occurred prior to 1964, and, at the other end of the spectrum, there will be cases where a conviction has been secured and there is an identified and solvent organisation to pursue.

“However, in all but these cases the choice will be far from clear. Investigation will be required to advise applicants not only on the prospects of winning a civil case, but also what their potential damages might amount to. The potential value of a claim is critical in allowing the applicant to weigh in the balance what they might potentially be giving up by accepting a redress payment and signing a waiver,” said Ms Leslie.

“If this provision in the Bill remains legal advisors will be liable should the advice tendered be negligent as the redress payment is likely to be significantly lower than those recovered in a civil damages claim,” she added.

A fairer and more workable approach, she says, would be to operate an offset or deduction in the event that civil damages have been or will be recovered. This mirrors the equivalent system under the Criminal Injuries Compensation Scheme.

“The Scottish Parliament still has time to pivot and make this a workable scheme designed to support and aid survivors of childhood abuse in care. The Scottish Government committed to bringing in a Redress Scheme no later than March 2021. To meet its stated aim the waiver provision must be removed or at least as a bare minimum an applicant who has submitted an application to Redress Scotland within the five year period should be allowed to conclude their civil damages without the threat that their application is deemed to be withdrawn,” Ms Leslie concludes.

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