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Special Report: Accountability and Reparations for survivors of non-recent abuse

The terms ‘accountability’ and ‘reparations’ mean different things to different victims and survivors of child sexual abuse, the Independent Inquiry into Child Sexual Abuse found.

Some survivors told the Inquiry’s investigation into accountability and reparations that they wanted apologies, acknowledgement, assurance of non-recurrence, others wanted their abuser to be punished and holding institutions to account. Many victims and survivors told the Inquiry that the provision of support was an important form of reparation.

However, compensation was not always seen as a correct form of redress. “Some victims and survivors told us that no amount of money could ever compensate them for what they had been through. Others did want financial compensation and hoped that the money might go some way towards helping them to achieve the things that they had been unable to because of the effects of the abuse. However, victims and survivors made clear that reparation was not just about financial compensation. Several spoke of a lost education and the inability to live fulfilled lives,” said the report.

The accountability and reparations public hearing took evidence from 40 witnesses over a period of 15 days 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.

The investigation examined the extent to which the systems of civil justice, criminal compensation and support services provide effective accountability and reparations to victims and survivors of child sexual abuse. It arose out of concerns that those systems may be failing to result in satisfactory reparation to victims and survivors of child sexual abuse.

What does accountability and reparations mean?

The Inquiry heard a number of key elements from victims and survivors as to what accountability and reparations meant to them.

- Punishment of offenders: Many victims and survivors wanted perpetrators brought to justice and punished – prosecuted in the criminal courts, convicted and imprisoned.

- Holding institutions to account: Victims and survivors wanted the institutions they saw as responsible for the abuse held to account for any failures that had allowed the abuse to occur.

- Acknowledgement and recognition: Acknowledgement and recognition of the abuse was important to victims and survivors. For some, this meant having their ‘day in court’ and the opportunity 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.

- Apologies and explanations: The majority of victims and survivors wanted genuine and effective apologies from the institutions and bodies that they thought had failed them, rather than from the abusers themselves. Apologies should be presented face-to-face and not a simple ‘sorry’ on a piece of paper. Those in authority should acknowledge the abuse and explain why it had been allowed to occur.

- Assurances of non-recurrence: Many victims and survivors wanted assurances that other children would be protected in the future.

- Redress: Some victims and survivors did not want compensation as financial redress could not compensate them for what they had experienced. Others wanted financial compensation to move forwards and help them to achieve the things that they had not been able to as a result of the abuse.

- Support: Many victims and survivors said that the provision of support was an important form of reparation.

“The importance attached to each of these elements varies between different victims and survivors, and individuals’ opinions about their significance may also change over time. This makes it impossible for any one system, whether civil justice, criminal compensation or support services, to satisfy everyone,” said the report.

Beyond reasonable doubt

The law in England and Wales means there are a variety of ways for perpetrators of child sexual abuse to be held to account under criminal law and in civil law. Many victims seeking reparations for child sexual abuse have found the experience of the legal processes “sometimes hostile, baffling, frustrating and futile”.
In the criminal route, a criminal complaint must be proved to a high standard – beyond reasonable doubt – but there is no time limit for the complaint to be made.

However, if civil law is used, the complaint may be proved to a lower standard – the balance of probabilities – but must usually be brought within a limited time period. This is either within three years from the abuse occurring or within three years of the complainants’ 18th birthday (it is 16 in Scotland).

Both are distinct legal processes each with its own intricacies. However, it becomes more complicated when, as is often appropriate, the two processes – civil and criminal – are pursued concurrently and in parallel.

“Some of the failings which were identified are already addressed by recommendations made by the Inquiry in our Interim Report of April 2018. Some proposals are still under consideration and are due for further consideration by the Inquiry later this year. One such 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,” said the report.

Redress

In terms of redress, Lambeth London Borough Council launched The Lambeth Children’s Homes Redress Scheme to operate between 2 January 2018 and 1 January 2020 and this has been extended to January 2022. It is designed so that the standard of proof, the elements for establishing liability and the valuation of claims are the same as the civil justice system. Written applications are determined by members of the Council’s Redress Team or the scheme solicitors.

Those eligible are entitled to:

- a written apology acknowledging what has happened, providing an acceptance of responsibility and an assurance that measures have been taken to prevent any further repetition;

- a meeting with a senior representative of the Council, so the survivor can feel heard and acknowledged;

- a payment of up to £10,000 to reflect the experience of living in an environment which caused them to fear immediate physical or sexual abuse;

- appropriate counselling or psychiatric support;

- specialist advice, support and assistance to obtain housing, appropriate welfare benefits, access to further education and suitable employment; and

- a compensation payment in accordance with the terms of the scheme.

Witnesses giving evidence to the IICSA inquiry on accountability and reparation highlighted 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

- A speedy process

- Parity with civil damages

Pros and Cons of Redress Scheme

The IICSA report states that the advantages of a Redress Scheme include avoiding a contentious, adversarial process, the flexibility to facilitate apologies and acknowledgements of wrongdoing, assurances that steps have been taken to prevent further abuse and the provision of support services.

Removing the compensation process from the civil justice system will avoid claimants suffering the stress and emotional trauma of adversarial litigation, the purpose of which is limited to obtaining financial compensation. Such a scheme may also cater for the specific needs of victims and survivors of child sexual abuse, the report added.

However, disadvantages include the fact that a redress scheme may not balance the interests of participants justly or investigate claims with the same degree of rigour as the civil justice system. A redress scheme may also not afford victims and survivors the opportunity to have their ‘day in court’.

A tariff-based approach may feel limited and impersonal to those who have suffered abuse. The structure of the scheme and the way it is funded – for example by government rather than the institutions – may prevent victims and survivors from feeling they have achieved accountability.

Law of Limitation

In terms of the law of limitation, under The Limitation Act 1980, in most cases a claimant must issue court proceedings on a personal injury claim within three years of the date of the incident or if the claimant was a child at the time of the abuse, three years from the date the claimant reaches the age of eighteen in England and Wales.

In Scotland, there are different rules. The Limitation (Childhood Abuse) (Scotland) Act 2017 is a piece of legislation which changes the rules around the time limits within which you can make a claim for compensation in the civil courts. Prior to the legislation, you would have to make your claim within three years of the injury, or (if it is later) three years from your 16th birthday.

The change means that there will no longer be a time bar on childhood abuse claims in the civil courts and there will no longer be a requirement to make a claim within the three years or to ask the court to use its discretion to allow the case to go ahead after that period.

Codes of Practice for civil cases of CSA

The IICSA report said: “Our approach to this investigation has been to examine the evidence we heard for areas in the legal processes where the experience of, and outcomes for, victims and survivors of child sexual abuse may be made fairer and more effective. 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.

“In this report, we make recommendations for: revision of the Victims’ Code to improve signposting of civil and criminal compensation; revision of the civil justice system so that the Local Government Association and the Association of British Insurers must produce codes of practice (aimed at eliminating unnecessary distress to claimants) to be followed throughout civil claims for child sexual abuse; revision of criminal justice compensation to increase the use of CCOs; and provision of a code to enhance access to therapy and support for victims and survivors through the litigation process,” it added.

The report makes a number of recommendations including The Ministry of Justice should revise the Victims’ Code and 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 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 of perpetrators.

“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,” said the report.

“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.

IICSA: Accountability and Reparations Report



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