As noted in our blog of 2 September, the Scottish Government launched a pre-legislative public consultation on financial redress for historical child abuse in care.
This is one of two blogs which looks in more detail at the consultation. This blog looks at the underlying general principles of the proposed statutory financial redress scheme and our next blog will look at the proposed payments, the evidence required to support them and how they will be assessed.
The Scottish Government say that the purpose of the consultation is:
- To seek the views on the detailed design of a statutory financial redress scheme (“the Scheme”) in Scotland;
- To obtain views on administrative issues;
- To get opinions on financial redress as part of a package of wider reparations for survivors of historical child abuse in care.
The consultation will run for 12 weeks and will close on 25 November, 2019. Responses to the public consultation will be published online unless respondents ask for their responses to be treated confidentially.
The results of the consultation will be independently and expertly analysed and the findings will be considered as part of the wider context in drafting the necessary legislation to establish the Scheme, which is to be introduced to the Scottish Parliament during 2020 and is expected to be enacted before the end of the current parliamentary terms in March, 2021.
The consultation provides significant insight into how the Scottish Government are currently thinking about how to deliver financial redress in Scotland.
The purpose of the financial redress that is to be paid (if the Scheme is established) is defined as being a sum “to acknowledge and respond to the harm that was done to children who were abused in care in the past in residential settings in Scotland where institutions and bodies had long-term responsibility for the care of the child in place of the parent.”
The intention is that the Scheme would be based on guiding principles that will take account of the views of the survivors while at the same time complying with the wider legal obligations of the Scottish Government to include those arising from the European Convention of Human Rights.
The proposed guiding principles are as follows:
- To ensure that redress is delivered with honesty, decency, trust and integrity;
- To make the scheme as accessible as possible;
- To treat applicants with fairness and respect and to offer them choice wherever possible;
- To ensure that the assessment and award process is robust and credible;
- To make every effort to minimise the potential for further harm through the process of applying for redress.
It is proposed that the Scheme is for survivors of “… historical child abuse in care in residential settings in Scotland where institutions and bodies had long term responsibility for the care of the child in place of the parent.” This means that the Scheme will not cover all those who are covered by the terms of reference of the Scottish Child Abuse Inquiry, in particular it is unlikely to cover those who were placed in private fee paying schools by their parents and those who were in hospital for medical or surgical treatment and still under the care of their children.
Abuse will be defined in the Scheme on the same basis as the Limitation (Childhood Abuse) (Scotland) Act, 2017 which defines abuse as ‘sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect’.
It is proposed that the Scheme will cover historical abuse which took place before 1 December 2004, which is when the first apology was made by the then First Minister Jack McConnell. The Scheme will only cover abuse that took place in Scotland.
Unlike the Australian Scheme the Scottish Government do not proposed treating people with a criminal conviction differently, if a survivor has a criminal conviction they will be entitled to apply in the normal course provided they meet the eligibility criterion.
It is proposed that the Scheme will be open for five years.
It is intended that surviving spouses and children of those who meet all the eligibility criteria prior to 1 December 2004, should be able to apply to the Scheme for a “next-of-kin payment”. This proposed payment will not attempt to assess the individual experience of the deceased survivor, it will be a flat-rate payment.
The Scottish Government believes that survivors should have the benefit of legal advice and/or representation but are not clear to what extent the cost of that legal advice/representation should be met by the Scheme.
For readers of the Blog who may have operated institutions where survivors were “in care” as defined above, it is worth noting that the Scottish Government has made it clear that they expect all those responsible to make a meaningful contribution to the costs of delivering the Scheme and they see this as including the Scottish Government itself, residential and foster care providers, local authorities which placed children in care and those which provides care placements and religious bodies responsible for care services.
Sharon Moohan, Partner, BLM