Further Scottish judicial consideration of vicarious liability and the fair hearing and substantial prejudice defences in non-recent childhood abuse claims

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Denis Alexander was sentenced on 30 July 2021 to four years and five months imprisonment and placed on the Sex Offenders’ Register indefinitely after pleading guilty to two charges of lewd, indecent and libidinous practices against boys aged between 12 and 14 when he was a monk and teacher at Fort Augustus boarding school in the Scottish Highlands in the 1970s. The school was run by a Benedictine community operating as a Trust.

Hugh Kennedy presently seeks £5m in compensation for injuries and related losses said to have been caused by physical and sexual abuse at the school in the mid-1970s at the hands of Mr Alexander and two lay teachers who are understood to now be deceased. The main questions for the court after hearing legal argument but no evidence in this case, Hugh Kennedy v The Right Reverend Paul Bonnici, The Right Reverend James Warren Cuthbert Madden and Denis Alexander, Lady Wolfe, Court of Session, 20 October 2021 (link here), and the court’s answers are summarised here:

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An update on work at the Scottish Child Abuse Inquiry

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The scheduled return to witness hearings at the Scottish Abuse Inquiry’s (SCAI) new venue at Mint House, 20 West Register Street, Edinburgh, was postponed from 6 to 8 October 2021. On reconvening in the morning of 8 October, Lady Smith, Chair of SCAI, apologised for the delay, explaining that it was “unavoidable and was due to the requirements of the last items of snagging work.”

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An update on the Scottish in-care abuse redress scheme

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Scottish Government has recently released its twelfth information note on the Scottish in-care abuse redress scheme, link here. Key points include that:

  • The scheme “is on schedule to open for applications in December 2021”.
  • The scheme will be run by two organisations – the Scottish Government Redress Division which will administer the scheme and provide support to apply and the new independent body, Redress Scotland, which will make decisions on applications.
  • Joanna McCreadie, formerly of The Gannochy Trust community and housing organisation, has been appointed as Chief Executive of Redress Scotland, with Johnny Gwynne, formerly of Police Scotland and the National Crime Agency, already in post as Chair of Redress Scotland. Recruitment of Redress Scotland panel members is ongoing.
  • Redress Scotland is working with StudioLR on a website and “brand identity”.

In other developments, secondary legislation is now in place on legal fees to be paid for work done on scheme applications. The fees for completed first applications are £450 for work on a fixed rate redress payment application or a next of kin application and £2,000 for work on an individually assessed redress payment application. VAT is payable in addition to these fees and certain outlays may also be recovered. Applications may be made for additional fees in “exceptional or unexpected circumstances.”

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Priest acquitted of sexual assault in Vatican’s first clergy abuse trial

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The trial of Rev. Gabriele Martinelli for allegedly abusing an altar boy when both were under the age of 18, ended on 6 October 2021, when the Vatican tribunal (in effect, the Pope’s criminal court) acquitted the accused of some charges and found others could not be punished as they had allegedly occurred too long ago. The former rector of the seminary, the Rev. Enrico Radice, was held not to have tried to cover up the alleged abuse.

In a statement, the tribunal said it accepted that there was evidence of there being a sexual relationship between Martinelli (who was not ordained at the time) and the alleged victim, LG, but no proof that LG, who was just seven months younger, had been forced into that relationship.

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Scottish multi-party action being raised against Celtic Football Club

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Multi-party, or group, litigation is being issued in Scotland against Celtic FC in respect of the non-recent abuse of children at Celtic Boys Club. This litigation is likely to bring into sharp focus the question of whether there was a sufficient institutional connection between the main football club and the boys club for liability for the actions of certain adults at the boys club to attach to the main club. In law and as expressed by Lady Hale in the United Kingdom Supreme Court case of Barclays Bank plc v Various Claimants, 1 April 2020, one of the key questions will be whether there was a relationship between main club and the abusers at the boys club “which makes it proper for the law to make one pay for the fault of the other.” Traditionally the law confined such relationships to those of employer and employee but the law has developed to also now allow liability to attach under the doctrine of vicarious liability where the relationship is one sufficiently akin to employment. Though decided in the English Court of Appeal, the recent judgment in Blackpool FC Ltd v DSN [2021] EWCA Civ 1352 is likely to be considered in the current Celtic litigation. In the Blackpool case, the Court of Appeal held that the relationship between the football club and a man who ran an unofficial feeder club was insufficient for vicarious liability, in part because the football club did not exert control over the man’s activities. The Blackpool case is more fully analysed is our blog here.  

Group litigation – sometimes known as collective redress, multi-party or class actions – has been enabled in Scotland from 31 July 2020. Scottish group proceedings are only competent at the Court of Session and may proceed only with the permission of a judge on an application by a “representative party”. Under the opt-in model used for Scottish group proceedings, the court’s decision in a particular collective case will extend only to those individuals who have subscribed to the group proceedings action. A positive outcome for a representative party in a group action will not be able to be relied upon by anyone who did not opt-in. Non-subscribers will not be bound to accept a settlement from the defender and could raise their own claim.

Those representing the claimants in these proceedings have indicated that more than 20 claimants are presently involved though a public notice is being issued which may increase this number.

David Milton, Partner and Fiona McEwan, Associate at BLM

(david.milton@blmlaw.com / fiona.mcewan@blmlaw.com)

Catholic Church in Scotland to establish a new safeguarding agency

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The Catholic Church in Scotland has announced the creation of a new safeguarding agency. Speaking this month at the end of a national safeguarding webinar which attracted 450 participants from across Scotland, Bishop Hugh Gilbert, President of the Bishops’ Conference of Scotland, announced the establishment of this new body – the Scottish Catholic Safeguarding Standards Agency (SCSSA) which will be run as an independent private company.

Speaking to the webinar participants, Bishop Hugh Gilbert said: “The SCSSA will operate entirely independently of the Church and will have its own staff and Board of Management who will work in close collaboration with dioceses and religious communities to ensure that they are able to meet national safeguarding standards. It will also develop a process that will provide an independent review of complaints about safeguarding practice and, crucially, establish a forum in which those who have experienced abuse can contribute their own perspectives to the development of safeguarding.”

Bishop Hugh added: “We will shortly commence the recruitment process for the Chair and members of the Board of Management, followed by the recruitment of a Director and a Head of Safeguarding Training.”

The Scottish Child Abuse Inquiry has already issued certain case study findings on the abuse of children at premises run by various Catholic orders in Scotland with further case study findings in respect of another Catholic order, the Marists, due for publication shortly.

Written by Frank Hughes, Partner and Fiona McEwan, Associate at BLM

(frank.hughes@blmlaw.com / fiona.mcewan@blmlaw.com)

Worrying developments as peer on peer abuse cases double in the two years to 2019

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Figures received by BBC Panorama show in September of this year demonstrate an alarming rise in the number of children abusing other children.

Following up on earlier research carried out by BBC Panorama in 2017 (which found that Police recorded almost 8,000 reports of abuse of children by other children in England and Wales) the most recent figures have seen those figure soar to 15,000 to 16,000, with number falling in 2020-2021 to 10,861 (which is thought to be largely attributed to the pandemic and the lack of opportunity for such abuse to be carried out with many children not being at school and movement generally restricted).

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Australian Redress Scheme amended to make provision for elderly and terminally ill – National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021

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Legislation to amend the Australian National Redress Scheme (NRS) was passed on 2 September 2021 and came into force on the 13 of September 2021.

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021(the 2021 Act) implements the following recommendations of the final report of the second year review of the NRS by amending the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 as follows:-

  • provide for advance payments of AUS$10 000 to elderly or terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people
  • change the date for which the indexation of relevant prior payments is calculated
  • extend the acceptance period of a redress offer after it has expired and provide for the period within which to seek a review to be aligned with any extension to the acceptance period
  • remove the requirement for an application to include a statutory declaration, and
  • provide for redress payments and counselling and psychological care payments to be made in instalments rather than as a lump sum, if requested by an applicant.
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A French IICSA?

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France is increasingly dealing with its own legacy of child sexual abuse.  Following on from revelations of widespread sexual abuse in the Catholic Church, inquiries have been set up in various countries.  In 2018 a German committee reported on sexual violence in the Catholic Church.  One month later the French bishops decided to hold their own independent inquiry.   The Ciase or Commission indépendante sur les abus sexuels dans l’Eglise catholique(Independent Committee on Sexual Abuse in the Catholic Church) was convened in November 2018.  It will report this week.

Its chair is Jean-Marc Sauvé, formerly the highest-ranking civil servant in France.  He took crucial decisions in the early months, such as deciding to exclude religious office-holders and victims’ representatives from its board, and individually selecting the 21 board members based on their in-depth knowledge of issues relevant to the inquiry.  Work started in February 2019.  Since then, these board members have spent many months touring France, meeting victims individually and listening to their stories.  It is a striking feature of the Ciase that collecting this evidence was put at the heart of its work, and was not delegated.  The number of victims since the early 1950s was initially thought to be in the region of 3,000; it is now expected to exceed 10,000.  Research has also been commissioned about the prevalence of sexual abuse in the general population compared to the Catholic Church, and its impact on victims’ health. 

The Ciase is expected to report on the number of victims in the Catholic Church, the circumstances and types of abuse and to make a series of recommendations.

Meanwhile another independent inquiry is starting work on child sexual abuse and incest.  The Ciivise, or  Commission indépendante sur l’inceste et toutes violences sexuelles faites aux enfants  (Independent Committee on Incest and all Sexual Violence against Children) was officially set up in March 2021.  It has two co-chairs and 20 members (a mix of lawyers, police officers, doctors, academics).  Its original chair, former Justice Secretary Elisabeth Guigou, resigned from her post after it transpired she was a close family friend of Olivier Duhamel – an influential academic and political player accused last year of sexually abusing his stepson in the memoir ‘La Familia Grande’ (see our previous blog here.)

The Ciivise members are visiting hospitals, specialist settings, police services, and will soon tour France to hold public meetings and encourage victims to share their stories.  A dedicated platform has been set up for victims, and support is being arranged.  The Ciivise is expected to make recommendations on preventing child sexual abuse, improving support services for victims and imposing sanctions on perpetrators.  No date has yet been set for these recommendations. 

Written by Genevieve Rich at BLM (genevieve.rich@blmlaw.com)

An update on work at the Scottish Child Abuse Inquiry including publication of findings on Scottish Government evidence

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On 29 September 2021, the Scottish Child Abuse Inquiry (SCAI) published its sixth set of case study findings, this time on evidence heard between 17 November and 4 December 2020 relating to Scottish Government and, in particular, the 13 year delay in the setting up of a child abuse inquiry in Scotland after a petition calling for such an inquiry was submitted to the Scottish Parliament. The findings describe this delay as “woeful and wholly avoidable”, adding that “Scottish Government failed to grasp the fundamental importance that survivors appropriately and justifiably attached to their need for justice, accountability and redress.” The delay between the submission of the petition in 2002 and the decision at the end of 2014 to hold an inquiry is found to have been caused by a variety of factors including “some ineptitude”, “some confusion on the part of ministers and officials”, “officials controlling the process up to the point of trying to prevent there being an inquiry” and “both ministers and officials failing to listen to and engage with survivors”. A link to these findings is here. The current Scottish Government has responded to these findings by apologising “unreservedly that it did not respond more appropriately and sooner to the concerns of survivors of abuse in care who called for a public inquiry”, also noting that “Responding to survivors of abuse in care spanned different administrations between 2002 and 2014.”

Also on case study findings and as confirmed in an autumn 2021 SCAI newsletter, here, SCAI will shortly publish a seventh set, with this set on institutions run by the Marists.

In other news, SCAI has moved to new premises at Mint House, 20 West Register Street, Edinburgh where it will hear further evidence on boarding schools from 6 October 2021. SCAI last sat to hear evidence in May 2021 when the focus was on boarding school provision at Loretto School in Musselburgh and Morrison’s Academy in Crieff. Evidence from 6 October will relate to Gordonstoun School in Elgin, Queen Victoria School in Dunblane, Keil School in Dumbarton, Fettes College in Edinburgh and Merchiston Castle School in Edinburgh.

SCAI hopes to start hearing evidence as part of a foster care case study in spring 2022, including on children who were boarded out as well as children who were placed in foster care by a Scottish local authority. It remains to be seen whether any more case studies will follow after the foster care one. SCAI previously confirmed investigations into 4 young offender institutions, 3 local authority establishments and 3 further schools but has not yet confirmed whether evidence will be heard in public on any of those.

SCAI was established as a statutory inquiry under the Inquiries Act 2005 on 1 October 2015 with an overall aim of raising public awareness of the abuse of children in care (under 18) for the period “within living memory” of any person who suffered such abuse to no later than 17 December 2014. SCAI’s work will conclude with a report to Scottish Ministers. This report was originally to be delivered by October 2019 but the deadline for it was extended before the COVID-19 pandemic to “as soon as reasonably practicable” after then.

SCAI publishes a running total of its costs quarterly. SCAI’s total cost from 1 October 2015 to 30 June 2021 was £46,874,090. Updated expenditure should be published around 15 October 2021.

Frank Hughes, Partner and Fiona McEwan, Associate at BLM

frank.hughes@blmlaw.com / fiona.mcewan@blmlaw.com