Following a consultation last year which received 35 written responses a very short draft bill has been produced by the Scottish Government which promises to make significant changes to the current ability for victims and survivors of abuse to bring claims for damages.
The key points in the Bill are as follows:
Removal of the three year limitation period – the Bill will remove the three year period which exists where abuse occurred after 26 September 1964. Where the abuse occurred before that date the law on prescription is such that the legal issues associated with its removal have for now, been deemed too difficult to overcome, although the Scottish Government is continuing to look at options for those abused pre 26 September 1964. If the abuse occurred both before and after this date then it will be possible for a claim to proceed.
Definition of abuse – the wording finally decided upon is “neglect, physical abuse, sexual abuse and emotional abuse”. The consultation suggested inclusion of “abuse due to unacceptable practices” and contributors to the consultation process also suggested it be extended to cover spiritual, ritual and human rights abuse. The final definition has been chosen on the basis that it is considered to be non-exhaustive and intended to be sufficiently broad to cover a wide range of abusive behaviour.
Children only – the consultation asked whether the definition of child should be someone who has not yet reached the age of 18 or a wider group. Suggestions for widening this included vulnerable adults, victims of domestic abuse or individuals who are homeless. However the response to the consultation noted that “Adults who are abused are less likely to be in a position of complete dependence and are better able to understand that what is happening to them is wrong.” It also considered that the abuse was less likely to have a fundamental impact on their personal development and ability to come to terms with what had happened to them. Therefore, the change will apply to victims who were abused under age 18.
Abuse after age 18 – The Bill also includes reference to the abuse having started when the survivor was a child. The key date will be the date when the abuse started. Therefore, it would seem possible that the changes will apply to those survivors who continued to be abused after age 18. Presumably if there had for example been grooming before age 18 followed by acts of sexual abuse post age 18 then these will be covered by the changes too.
Abuse in care only? – the Scottish Inquiry into child abuse is just focused upon abuse in a care setting, a decision which has been much criticised. The same issue was considered in the consultation and a decision made that the changes on limitation should apply irrespective of where the abuse occurred. As is noted “The critical factor is the vulnerability of the pursuer who was a child at the time of the abuse and not where the abuse occurred.”
Return of previously repudiated claims – understandably the consultation raised the issue of whether cases which had previously been unable to proceed because they were deemed out of time, should be able to now do so. The Bill makes specific provision for such cases to be brought again regardless of the fact that it had been previously disposed of.
Human Rights – in considering the possibility of returning claims it was accepted that there could be challenges from defenders who might consider their human rights had been breached under Article 1 (right not to be deprived of property except in the public interest) or Article 6 (right to a fair hearing). The Scottish Government has accepted that for all cases including those which have been raised before, it will still be necessary to ensure that the defender can receive a fair hearing and that by reference to the defender’s European Convention rights it will be equitable to allow the claim to proceed. This would seem slightly at odds with the intent to remove a barrier for survivors so that survivors can more easily proceed with a claim. If the defender can argue that they cannot receive a fair hearing due to the passage of time/breach of their human rights, that barrier does not seem to have been removed.
Non-negligible injury – on the subject of defining abuse the Scottish Government’s response notes that in any successful action, it will still depend on the person bringing the claim being able to show that the abusive behaviour must have caused an actual non-negligible injury. This term is repeated again in the explanatory notes but no further comment is made of what the threshold will be for abuse to have caused something greater than a non-negligible injury.
It is hoped that this Bill will be introduced quickly. It will be interesting to see the immediate impact it will have but it is no surprise that it is expected that more actions will be raised, at least in the short term; that more cases will come to court; and more settled out of court. Benefits and concerns were noted, but in the end the need to afford justice to survivors who have suffered serious harm and who were facing significant barriers to seeking redress was deemed to outweigh the potential financial and reputational impact on defenders. When this change has been implemented in Scotland it will no doubt bring additional pressure for a similar change to be introduced in England & Wales.
Written by Paula Jefferson, partner