At 12pm on Thursday 19 September 2019 IICSA published its report in the Accountability and Reparations investigation.
This IICSA investigation was set up to inquire into the extent to which existing support services and available legal process effectively deliver reparations to victims and survivors of child sexual abuse.
The report follows 15 days of public hearings between November 2018 and January 2019 focused on five case studies when the Inquiry heard evidence from 40 witnesses including victims and survivors, defendant institutions, insurers, claimant and defendant solicitors, the police and other relevant individuals and organisations.
As has already been publicised by the Inquiry the following issues are to be explored further at a public hearing in November 2019:
- Whether the law of limitation should be reformed to make it easier for victims and survivors to bring claims in respect of non-recent sexual abuse.
- The potential for a redress scheme to offer accountability and reparation to victims and survivors of child sexual abuse.
Key points arising from the report are as follows:
- There was a great deal of evidence heard from victims and survivors who reported varying degrees of “bafflement and distress” when attempting to pursue remedies for child sexual abuse through the criminal and civil processes.
- The time span of the case studies (from the 1960s) meant that the law, practice and procedure for the conduct of sexual abuse claims changed and evolved, compounding victims and survivors distress and adding greater complexity to the process.
- Victims and survivors and their representatives gave evidence that the civil litigation process failed to deliver reparation and resolution. The routes to secure apologies, affirmation and other types of redress were missing. Often the civil process would add to the victim and survivors suffering.
- Victims and survivors reported surprise and distress when defendant institutions and insurers challenged claims of child sexual abuse and they were required to undergo a second psychiatric examination by a defendant instructed expert.
- Some of the cases studies demonstrated the difficulties experienced by the victims and survivors unable to trace any insurance or the correct insurer for the defendant institution.
- The Inquiry noted different approaches to the handling of child sexual abuse claims by defendants and their insurers. Some insurers have developed claims handling guidance for these claims over the years and some have not. None of the four local authorities appearing in the public hearing had any written policies.
- Unsurprisingly one of the most contentious issues ventilated during the course of the public hearing was that of limitation and its use by defendants and their insurers. The Inquiry heard how insurers approached the use of limitation in different ways. For many victims and survivors the experience is that limitation is invariably part of the defendant’s defence and used to defeat a claim at an early stage.
- The Inquiry heard evidence from victims and survivors and their representatives as to the low level of damages awarded in child sexual abuse cases.
- There was concern expressed by many of the witnesses that the opportunity to make apologies facilitated by the Compensation Act 2006 might not extend to vicarious liability claims and that was seen by some as an impediment to apologies being made.
- The majority of those victims and survivors and their representatives who produced evidence to the Inquiry said that both civil claims and the CICA processes are not suitable for victims and survivors of child sexual abuse and can have a damaging impact. Many participants recommended, or asked the Inquiry to investigate, the possibility of a redress scheme. Evidence was heard in relation to a number of different redress schemes.
Conclusions and recommendations
The Inquiry concluded:
“The individual and institutional defendants have the right to defend themselves in accordance with these laws and processes. However there is a compelling need for claims by victims and survivors of child sexual abuse to be treated differently from other forms of personal injury litigation.”
Specifically the Inquiry recommended:
- The MoJ should revise the Victims’ Code to provide greater signposting and support to victims and survivors of child sexual abuse through the civil and criminal processes.
- The Local Government Association and Association of British Insurers (ABI) should each produce codes for responding to civil claims of child sexual abuse.
- The government should introduce legislation to clarify the operation of the Compensation Act 2006.
- The DWP and ABI should work together to introduce a national register of public liability insurance policies.
- The Judicial College should revise its general damages guidelines for damages appropriate to child sexual abuse cases.
All organisations tasked with recommendations are encouraged to publish a response to each recommendation within six months of the publication of this report.
Michael Pether, Partner, BLM