Scottish Government publishes independent analysis of pre-legislative public consultation on financial redress for historical child abuse in care

To inform the design and delivery of the proposed statutory financial redress scheme in Scotland, the Scottish Government launched a pre-legislative public consultation last year which ran for 12 weeks, closing on 25 November 2019.

In total, 280 responses to the consultation were received. Of these, 82% were from individuals, while the remainder 18% were from organisations.

Of the individuals who responded, around 91% identified as a survivor of abuse in care and some individuals drew on their own experience of abuse in care to illustrate or explain their answers.

Independent analysis of all consultation responses has now concluded and the Scottish Government published a summary report of that analysis on 23 March.

The findings from an independent analysis of the responses are summarised below.

Areas where there was general consensus

  • 94% of those who responded agreed with the proposed definition of abuse which includes sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect.
  • 79% of all respondents agreed with the proposal to limit eligibility for financial redress to situations in which institutions and bodies had ‘long term responsibility for the child in place of the parent’.
  • There was widespread support for the proposals to allow child migrants and those with criminal convictions to apply to the proposed Scheme but some respondents argued that eligibility (or the level of payment) should take account of the nature of any conviction where the applicant had a criminal conviction.
  • 98% of the respondents supported the proposal for the redress scheme to have the power to require bodies or organisations to release relevant documentation which may be required to ground the application. There was also widespread support (96% of all respondents) for the suggestion that the scheme should offer assistance to victims / survivors in obtaining documentary records required for an application.
  • Interestingly 95% of organisations agreed that applicants should be able to give oral testimony in support of their application (but should not be required to do so) whereas only 88% of individuals agreed with this proposal.
  • In terms of assessing any redress payment there was broad agreement that there should be no ‘hierarchy’ in terms of different types of abuse as a means of determining the level of individually assessed Stage Two payments. Some respondents thought that all applications should be treated the same, however there was greater support for applications to be assessed in a ‘holistic’ way, taking account of all circumstances, and a range of factors (including length of time in care and nature of the abuse). The majority of respondents were of the view that the impact of the abuse should be key in determining payments. Some respondents identified particular types of impact – including mental and psychological harm, physical injuries and disabilities, and general consequences for relationships, health, education and employment.
  • There was wide support for providing applications from next-of-kin in cases where the individual who had been abused in care was now deceased. Other international redress schemes who have allowed such applications have done so on the basis of the abuse of the deceased victim or survivor and the impact it had on them. Interestingly respondents to this consultation felt that any redress payments to the next-of-kin should also recognise the significant impact of abuse on whole families; acknowledge the suffering of the deceased family member; and provide closure for their next-of-kin. It appears there were differing views among the respondent as to how the concept of next-of-kin should be defined. There was no clear consensus on a cut-off date for these applications, however 17 December 2014 was the option that attracted the highest level of support (42%), with respondents noting that this date was aligned with the announcement of the Scottish Child Abuse Inquiry, and would maximise the number of eligible individuals.
  • 75% of the respondents thought everyone should be eligible to apply for redress even if they had received a payment from another source such as a civil court case. 50% of respondents submitted that any redress payment made under the proposed scheme should take account of any payments received from other sources.
  • 94% of respondents agreed that organisations bearing responsibility for historical child abuse should contribute financially to the redress scheme while almost all the respondents agreed that there should be consequences for those responsible who do not make a ‘fair and meaningful’ contribution.
  • There was general consensus that a personal apology should be given to victims / survivors of in-care abuse in conjunction with a redress payment and 96% said that a dedicated support service for in-care victims / survivors would (continue to) be needed once the financial redress scheme is in place.

Areas where there was less consensus

  • Proposals that were seen to limit or restrict eligibility for the scheme were not widely supported. There was a concern among individual respondents that some groups of victims / witnesses might be unfairly or arbitrarily excluded from the scheme.
  • While nearly all respondents were able to agree the definition of abuse, they found it harder to agree the definition of “historical abuse” with only 61% agreeing with the proposed cut-off date of 1 December 2004.
  • There was no clear consensus about what evidence should be used to ground a Stage One or Stage Two application.
  • In determining levels of payment of redress the respondents agreed that the general impact of the abuse was key, however other considerations that respondents thought should be taken into account are as follows:
    • principles of fairness and equality;
    • concerns about double payments; and
    • questions about how any previous payment might be taken into account.
  • 57% agreed that applicants should have to choose between accepting a redress payment or pursuing a civil court action. Organisational respondents differed in their approach to this concept, local authorities/public sector partnerships agreed that applicants should have to choose between accepting a redress payment or pursuing a civil court action, whereas all third sector respondents such as the religious order etc. did not feel that applicants should have to make this choice.
  • There were mixed views about the scale of payment that next-of-kin applications should receive; 56% of all respondents thought they should receive 100% of whatever redress payment they were assessed as being entitled to under the Scheme.
  • While there was general agreement that those organisations bearing responsibility for abuse should make a financial contribution to the scheme, there was less consensus about exactly who should be considered responsible and organisational respondents highlighted the challenges and complexities of identifying the organisations responsible.
  • There were mixed views about where the scheme administration should be based. The most common suggestions were Edinburgh, Glasgow or ‘somewhere in the Central Belt’. However, others submitted that the scheme should have multiple locations, a ‘hub and spoke’ or mobile model, or a significant outreach function. The responses made it clear that the views of the victims should be paramount in deciding what the new public body should be called.

A number of recurring themes emerged from the responses received:

  • There is a need for the scheme to be clear and simple, accessible and victim / survivor-centered;
  • The scheme should provide  for an appeal / review procedure for individual cases;
  • The need for the scheme to complement, and be consistent with, existing support for victims;
  • The need for applicants to be given appropriate support (both practical and emotional) in connection with applications made to the scheme and more generally and for special provisions to be made for those lacking mental or legal capacity;
  • That ‘abuse is abuse’ and the implications of this for how different types of abuse and its impact should be assessed and treated within the scheme;
  • The need to balance robustness and transparency with a commitment to listening to, giving voice to and believing the accounts of victims / survivors;
  • The difficulties faced by some victims / survivors (especially those who are older) in accessing evidence of time spent in care or the abuse itself.

Organisations who responded seemed concerned about the following:

  • Evidence thresholds and standards of proof;
  • Clarity of definition and consistency with wider legislation and practice;
  • The scope for particular groups (e.g. some people abused in the context of fee-paying boarding schools or long-term hospitals) to be excluded;
  • Organisations, particularly local authorities, raised the absence of sufficient insurance cover to cover “organisations” financial contributions to the scheme. There was also concern about how these financial contributions will be determined, and how that may potentially impact on current and future service provision.

Whereas individuals who responded were appeared to be concerned about:

  • Ensuring that the application process and administration of the scheme is inclusive, accessible and easy to understand;
  • The difficulty of evidencing in-care status or abuse, particularly for older applicants and next-of-kin;
  • The role and voice of victims / survivors in the process as a whole.

The views expressed will be used to shape the draft legislation which is due be introduced to the Scottish Parliament during 2020.

moohan_sharonv2

Sharon Moohan, Partner, BLM
sharon.moohan@blmlaw.com

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