Up-to-date news and expert insight into the Independent Inquiry into Child Sexual Abuse (IICSA) and other abuse claims related matters. The Independent Inquiry into Child Sexual Abuse has launched a landmark television public awareness campaign to ensure all victims and survivors across England and Wales have the opportunity to come forward to the Truth Project. Find out more: https://www.truthproject.org.uk/whats-involved
Child exploitation can take many different forms, they include:
Child sexual exploitation
Child criminal exploitation, including county lines
Peer on peer abuse
Online grooming and abuse
Radicalisation
Modern slavery and trafficking for the purpose of child exploitation
In all forms of exploitation it can sometimes appear to the untrained eye that the child or young person is complicit in their abuse. Exploitation is not a ‘lifestyle choice’ and it is a widespread issue, as these statistics show:
The Scottish legislation which retrospectively abolished limitation in personal injury claims arising from childhood abuse expressly retained defences where a fair trial would be “impossible” and where the retrospective effect of the abolition of limitation gives rise to “substantial prejudice” to the defender sufficient to outweigh the interests of the pursuer in the case proceeding.
In a previous blog (link here), we commented on the sheriff’s decision in LM v The Executor of DG. This was the first reported judgment on the fair hearing defence. After hearing legal argument, but no evidence, the sheriff refused to dismiss the case on the basis of the fair hearing defence but neither upheld nor rejected the defence, deciding instead that evidence would need to be heard first. So, the sheriff fixed a proof (evidential trial) on all issues.
In February 2016, the then Northern Ireland Executive agreed to establish an inter-departmental working group to take forward work on Mother and Baby Homes and Magdalene Laundries and Historical Clerical Child Abuse, which fell outside the Historical Institutional Abuse Inquiry.
The Working Group was tasked with considering the evidence about the operation of Mother and Baby Homes and Magdalene Laundries and make recommendations to the Northern Ireland Executive on what action to take.
The Commission of Investigation into Mother and Baby Homes said that former residents of the institutions investigated by the Commission had raised the issue of redress with them. Former residents sought redress for what they considered to be the wrongs done to them in those institutions and/or by society generally.
The Commission, in making its recommendations, noted that:
redress can be in the form of enhanced services or financial payments and
Former residents of the institutions investigated felt that an apology would also be appropriate.
Enhanced services
The Commission said that counselling and enhanced medical cards should be made available to those former residents who need them.
Financial redress
The Commission was clear that any decision to provide financial redress is a matter for the Irish Government.
If redress is to be considered for former residents of mother and baby homes, the Commission said that the relevant comparable redress schemes are the Residential Institutions Redress Scheme (RIRS) and the Magdalen laundries scheme.
In the Commission’s second Interim Report in August, 2016 it reported that it felt that there were inconsistencies in the decisions made to include/exclude some institutions from the RIRS. In its final report the Commission remained of this view and said that the exclusion of children from the Children’s Home at Tuam from the RIRS as “most egregious” as it was a local authority home where “many children” stayed until they were seven years or older.”
The Commission noted that the criterion for the inclusion of an institution in the RIRS was “whether or not a public body had a regulatory or inspection function in respect of that institution.” and concludedthat it was “abundantly clear that all institutions investigated by the Commission meet this criterion.” The implication being that these institutions could have been included in the RIRS from the outset.
The Commission further noted that the RIRS applied to children under the age of 18 and therefore if the RIRS (which is still in existence) was extended to the institutions under the remit of the Commission a number of mothers would be eligible to apply to the RIRS for redress.
The Commission also thought that children who had spent time in the Children’s Home at Tuam, Bessborough in Cork, Castlepollard in Westmeath, Sean Ross in Tipperary, the Bethany and Denny homes in Dublin should all be eligible to apply to the RIRS for redress.
However, the Commission went on to remark that those children, some of whom had spent very short periods in the institutions, “would find it very difficult to establish they had been abused” for the purpose of having redress awarded to them under the RIRS.
Children who had spent time at Belmont, Miss Carr’s, the Castle and the Regina Coeli resided in these institutions with their mothers and so the Commission was of the view that the issue of financial redress did not arise for these children.
The Commission was however satisfied that all the former child residents in the four county homes it investigated, who were resident in those institutions without their mothers should also be eligible for any financial redress package announced by the Irish Government.
The Commission also commented on the women who were resident in the Magdalen laundries who received ex-gratia payments because they were considered to be incarcerated and were made to do commercial work for no pay. Although the women in the mother and baby homes were not in the exact same position, the Commission was satisfied that there were some similarities between the two groups and as such that it may be suitable to consider a similar ex-gratia type payment to the women in the mother and baby homes.
There was evidence that some of the women in these institutions had carried out unpaid work on behalf of the local authority or the institutions. The Commission found that if this was the case that these women should be eligible to apply to the Magdalen laundry scheme.
The Commission concluded by saying that those women who spent lengthy periods (in excess of six months) in mother and baby homes should be considered for redress on the same basis as the Magdalen Laundry Scheme. The payment made related to the time spent in the institutions. The Commission settled on six months as the cut off period in terms of being eligible for this proposed redress as six months was the average length of time that women spent in mother and baby home outside of Ireland.
However, the Commission was clear that after the introduction of the Unmarried Mother’s Allowance in 1973 things changed and women had other options and as such those women who entered a mother and baby home after 1973 did not have a case for financial redress.
State apology
Since the publication of the final report the Irish Government has issued a State Apology.
On 13 January, the Irish Prime Minister, Taoiseach Michael Martin apologised on behalf of the State for the “profound generational wrong visited upon Irish mothers and their children” in mother and baby homes and county homes”. Mr. Martin said “the Irish State funded these institutions” and had authority for directing their operation. “This authority was not exerted, and the State’s duty of care was not upheld. The State failed you, the mothers and children, in these homes.”
The Roman Catholic Church in Ireland and those religious and other charitable organisations responsible for operating several mother and baby homes have also issued separate apologies.
It has also been confirmed at the end of last week that Minister for Children Roderic O’Gorman has written to the primates of the Church of Ireland and the Roman Catholic Church, as well as to the religious congregations and the associated charities asking them to read the report of the Commission of Investigation into Mother and Baby Homes and meet him to discuss their own apologies to victims, contributions to the redress fund and access to records for survivors.
Minister O’Gorman has given a commitment to bring forward proposals for a redress scheme by the end of April 2021.
The Commission of Investigation into Mother and Baby Homes Terms of Reference provided that it could make recommendations that it considered appropriate. The Commission says that the two main issues raised by former residents of the institutions that were investigated were as follows:-
Perceived deficiencies in the information and tracing systems, and
Redress for the wrongs done to them in the institutions and/or society generally.
The Commission made recommendations on these two main issues and some related matters.
In the opening sentence of the executive summary of the final report from the Commission of Investigation into Mother and Baby Homes, it notes that “The story of mother and baby homes in Ireland is complex and its nuances cannot be easily captured in a summary.”
The Commission’s Terms of Reference covered a span of 76 years, from 1922 to 1998 and it found that the experience of woman and children in these homes in the 1920’s was very different to those were admitted in the 1990s.
As stated in our blog last week the Irish Commission of Investigation into Mother and Baby Homes was set up in 2015 following revelations about the deaths and burials of hundreds of children at one such former institution in Tuam, Co Galway.
The commission was charged with examining what happened to vulnerable women and children in mother and baby homes during the period 1922 to 1998, a span of 76 years. The final report, which had been with the Irish Government since late last year was published on the 12 January 2021.
The three members of the Commission were Ms. Justice Yvonne Murphy, Prof Mary Daly and Dr William Duncan. Ms. Justice Murphy had previously investigated the handling of clerical child sex abuse cases in the Roman Catholic Archdiocese of Dublin and the Diocese of Cloyne in Cork. Prof Daly is President of the Royal Irish Academy and former professor of Irish history at UCD. Dr Duncan is a retired Professor of Law at Trinity College, Dublin, and is a former member of the Law Reform Commission.
The Commission investigated 18 institutions: 14 mother and baby homes and a sample of four county homes.
The mother and baby homes investigated were as follows:-
The Children’s Home at Tuam, Co Galway;
Ard Mhuire at Dunboyne, Co Meath;
Belmont on Belmont Avenue in Dublin;
Bessborough in Cork;
Bethany in Dublin;
Denny House in Dublin;
The Kilrush Home in Co Clare;
Manor House at Castlepollard, Co Westmeath;
Ms Carr’s at Northbrook Road in Dublin;
The Regina Coeli hostel on North Brusnwick Street in Dublin;
Seán Ross Abbey in Roscrea, Co Tipperary;
St Gerard’s on Mountjoy Square, Dublin;
Pelletstown/St Patrick’s on the Navan Road, Dublin, and
The Castle in Newtowncunningham, Co Donegal.
The four county homes investigated were as follows:-
St Kevin’s institution in Dublin,
Stranorlar County Home in Donegal,
Cork City County Home and
Thomastown County Home in Kilkenny.
It held 195 hearings which involved 64 former residents of the institutions, 30 advocacy groups and 16 sisters/members of religious congregations. In addition the Commission heard from experts, social workers, local authority officials, Government officials, people who worked in the homes and others who had experience of how the homes had been operated.
The most recent information to hand, which is from October, 2020 confirmed that the Commission had cost €11.5 million to date which seems a conservative amount as the Irish Government had allocated €23 million to cover the work of the Commission.
In a series of blogs over this coming week we are going to look at the findings of this Commission, the recommendations made by it (especially the recommendations on redress) and the reaction to the report from the Irish State, the Roman Catholic Church in Ireland and Survivors and Victims.
Written by James Chambers at BLM james.chamber@blmlaw.com
A Seoul Court has ordered Japan to compensate a group of wartime sex slaves.
This recent judgment is the most recent piece of an ongoing dispute between the two countries on the issue of sexual enslavement of women in the Second World War.
The Seoul Court found that the Japanese Government was liable to compensate 12 women who were forced to work as “comfort women” and to pay 100 million won (£67,000) in compensation to each of the women.
It is thought that as many as 200,000 women mostly Koreans were compelled or duped into working in military brothels for the Imperial Japanese Army during the Second World War, many were raped and beaten and had forced abortions.
Japan who said the court has no jurisdiction and took no part in the proceedings is unlikely to comply with the judgment of the Seoul Court.
Japan has argued that sovereign immunity applies in these cases but the Seoul Court ruled that “Even if it was a country’s sovereign act, state immunity cannot be applied as it was committed against our citizens on the Korean peninsula, which was illegally occupied by Japan.”
Japan has also argued that all compensation claims were settled in 1965 when both countries re-stablished diplomatic ties and any outstanding issues were addressed in a 2015 agreement between the parties.
In late 2015, the countries said they had “finally and irreversibly” resolved this issue when Japan agreed to contribute ¥1bn to a foundation to support survivors and their families, while the then Japanese prime minister, Shinzo Abe, offered his “most sincere apologies”.
However, in in 2018, South Korea’s president, Moon Jae-in, effectively reversed the settlement, which he had not been party to on the basis that it did not meet the needs and expectations of the surviving women or the wider South Korean public.
There are only 16 registered survivors/”comfort women” still alive and of the 12 survivors who brought this claim, which has been ongoing since 2013 only 7 are still alive though the families of the other 5 are able to represent their interests.
This judgment (which is unlikely to be the end of this thorny issue) also serves as a reminder to people dealing with claims relating to historical sexual abuse, of the importance of achieving a fair and equitable settlement as between the parties so as to ensure finality for all.
Written by Sharon Moohan at BLM sharon.moohan@blmlaw.com
Thousands of the most vulnerable children have been sent to unregulated care homes during the pandemic. The number of children in need has soared during the COVID crisis and council leaders say there is nowhere else to place those most at risk as there are not enough places in regulated care homes. Therefore young people are being placed in supported living facilities which are not monitored by Ofsted.
Anne Longfield, the Children’s Commissioner for England, said the children’s care system had been “left to slip deeper into crisis” during the last year leaving children at risk of “abuse or exploitation.”
In August 2019, adult victims of childhood sexual abuse were given a year-long window of opportunity to seek justice for their suffering. The ‘look-back window’ suspended the statute of limitations under the Child Victims Act to allow survivors to file their case between 14 August 2019 and 14 August 2020. This window was later extended by Governor Andrew M. Cuomo in light of the COVID-19 pandemic, allowing survivors to file suit for historic claims of abuse under the Child Victims Act until 14 August 2021. Prior to the look-back window, under the Child Victims Act, victims of abuse had from 1 to 5 years from the date of their 18th birthday to file a suit.
Since the news of the look-back window, other States have taken a similar approach including New Jersey, who provided a two year window for survivors, and California who permitted a three year window. These are just two examples of fifteen states who have amended their laws on limitation when it comes to claims arising out of historic sexual abuse. Whilst the COVID-19 pandemic is currently a key factor being taken into account when making decisions on limitation, it is without doubt that these changes were also influenced by the Me Too movement and the Jeffrey Epstein scandal.
