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
Upon conclusion of a claim for damages for the consequences of sexual abuse, an organisation which has been held vicariously liable for the perpetrator of the abuse should give consideration to the possible recovery of all or a contribution to the paid damages and costs from the abuser pursuant to the Civil Liability (Contribution) Act 1978.
The above Act allows defendants to pursue the individual guilty of the wrongdoing for damages and costs within the limitation period of two years once the original claim has concluded (either from the date judgment was given or damages agreed). The right to recover from the abuser is provided regardless of whether the recovering party were held liable or admitted liability in the original action.
Pursuers in personal injury claims litigated at the Scottish Court of Session or All-Scotland Personal Injury Court have a right to have their claim tried by a civil jury. Where this right is exercised, the case may only be withheld from jury trial if a defender can show “special cause”. This has consistently been applied as a high test however in EG v The Governors of the Fettes Trust, Lord Clark, Court of Session, 22 December 2021, link here, a childhood abuse claim has been withheld from jury trial after special cause was found to exist.
A BBC investigation has uncovered that children are wrongly being kept in non-Ofsted registered accommodation with the use of Family Court Deprivation of Liberty Orders. It is reported that children are being kept in holiday parks and AirBnb’s instead of suitable children’s home or in foster placements.
It is suggested that the reason for this is due to the lack of Oftsed approved children’s homes, resulting in local authorities being without accommodation options for a huge amount of children in need.
Over 6000 victims and survivors of child sexual abuse have shared their experience with the Truth Project, part of the Independent Inquiry into Child Sexual Abuse.
Launched in 2015, the Truth Project has provided a safe and supportive opportunity for survivors to share their accounts and put forward suggestions for change.
The Truth Project began as a pilot in Liverpool in November 2015, with all victims and survivors being invited to share their experiences from early 2016. When the Coronavirus pandemic hit, and in-person sessions were suspended, victims and survivors were still able to engage with the Truth Project on the telephone, via video call and in writing.
Readers of this blog may wonder why we cover so many of the developments in this area of the law in Australia however, our experience is that there are definite parallels between the work of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse and IICSA and it seems inevitable that there will be further parallels and similarities arising from the implementation of the recommendations made by both inquiries.
The attorney general for Southern Australia Vickie Chapman spoke earlier this year about how “The Royal Commission highlighted shocking cases of abuse and abhorrent behaviour that should never have been swept under the rug and allowed to go unpunished” she went on to say that reforms were being introduced with the aim of better protecting “…children and punish those who turn a blind eye to these unforgiveable crimes.”
The new laws that were passed by the State Parliament in early December, 2021 include the following:-
Reversing the onus of proof so that an institution will be held liable for abuse committed by associated persons, unless the institution can prove it took reasonable steps to prevent the abuse from occurring.
Making an institution liable for child abuse committed by its employee, where the institution supplied the occasion for the abuse, and the employee took advantage of it (known as vicarious liability)
Holding institutions vicariously liable for people who are akin to employees (but not actually employed by the institution)
Removing the legal shield for unincorporated associations to avoid legal liability
Enabling survivors whose settlements were unfair as a result of certain legal barriers to apply to the court to have the settlement set aside
While some of these measures are familiar to practitioners in this area of the law in England and Wales (especially the concepts of vicarious liability and of someone being in a role akin to employment) the measures providing for the reversing of the onus of proof and the setting aside of settlements that were unfair as a result of certain legal barriers, which we discussed in a BLOG earlier last week all provide further examples of this ever evolving area of the law and a willingness by politicians and governments everywhere to take whatever measures they deem necessary to make it clear that child abuse and/or turning a blind eye to it will not be tolerated in the future.
The National Association for People Abused in Childhood is a national charity offering support to adult survivors of all types of childhood abuse, including physical, emotional, sexual and neglect. As well as advocating on behalf of survivors in the media and elsewhere, NAPAC also trains professionals who have frequent contact with survivors of child abuse as part of their working environment. If you have been affected by the issues raised in today’s blog, or would like additional support, please use the links above.
‘Rideshare’ also referred to as ‘carpooling’ is the term used for when two or more commuters ride together in a private vehicle. The rideshare app ‘Lyft’ works in a similar way to the popular Uber app – you request a ride through the app, get matched with a driver and pay the driver through the app at the end of the journey.
However, rideshare companies have come under increased scrutiny over safety issues, especially sexual assault charges. In Australia a 43 year old man has recently been charged with sexual assault after pretending to be a rideshare driver. It is alleged he assaulted three women aged between 19 – 21 years old either late at night or in the early hours of the morning.
On the 23 November 2021 the Australian Joint Select Committee on Implementation of the National Redress Scheme (“the Committee”) tabled its Second Interim Report (“the report”).
In tabling the report the Committee was keen to acknowledge that the National Redress Scheme (“the NRS”) require constant review and at times recalibration in order to effectively meet the needs of victims and survivors and society at large.
The Committee also noted that the efficacy of the NRS is also impacted by how attractive redress is as a means of dealing with these claims when considered against the broader access to civil compensation, which has been introduced by legislative changes introduced by the State and Territories throughout Australia as discussed in our earlier BLOG Reopening settlements in abuse cases – the approach in Australia – could it happen in other jurisdictions?
The report noted that “significant momentum was lost before the Scheme formally commenced and awareness of its existence is now limited”
The Committee accepts the observations of Ms Robyn Kruk AO at the time of publishing her Second Anniversary Review of the NRS in June 2021 that there is only a very limited timeframe for making any meaningful changes to the NRS at this stage.
The Committee says that its focus is identifying those reforms that will improve survivor participation and experience and increase awareness and access to the NRS among First Nations people.
The Committee noted that 12,305 applications have been received, 7,093 offers made and 6,703 applications finalised. The 6,448 payments to survivors total approximately AUS$551.2 million, with the average Redress payment now approximately AUS $85,481.
The Committee noted that reforms made in the last 12 months to the NRS included:-
encouraging institutions to join by removing tax concessions and Federal grants;
legislating for AUS$10,000 ‘advance payments’ to elderly and terminally ill applicants and
expansion of the Funder of Last Resort provisions for defunct and financially incapable institutions.
However, despite these and ongoing reforms since the NRS was launched in July, 2018 the sense of the Committee is that the NRS is still more complex to administer than originally thought and this has been constant theme of the commentary on the NRS by victims and survivors.
The Committee makes 21 recommendations:
The establishment of a First Nations panel to provide specific advice to the NRS on the design and implementation of cultural safety principles and practice; and the development and implementation of an intensive education campaign across regional, rural, and remote communities to drive awareness and improve access to the NRS for First Nations people.
Formal evaluation of redress support services be established to ensure that the needs of survivors and their families are being met through professional and timely engagement.
The NRS engage additional redress support services in regional, rural and remote areas that offer face-to-face support
The NRS consider expanding current funding arrangements to provide after hours and weekend specialist services.
The NRS produce public education materials to clearly explain and demonstrate how the assessment framework is applied to applications by Independent Decision Makers.
The NRS introduce annual mandatory training requirements for Independent Decision Makers and that the agreed minimum training requirements are published for survivors to understand.
The NRS implement an internal moderation and review process for all application determinations prior to being finalised.
The NRS Scheme amend current review processes to ensure that applications are only reviewed by senior Independent Decision Makers, and allow for survivors to provide additional materials on matters raised by Independent Decision Makers.
The NRS eliminate the practice of indexing prior payments made to survivors.
The NRS commence indexing awards to an inflation measure.
The NRS consider amending the NRS Rules so that the total financial award limit applies to each institution found responsible for institutional child sexual abuse, instead of each application (This recommendations is being made as the Committee are looking at the NRS being amended to provide that where an applicant has been abused across multiple institutions, the cap on redress payments should apply to each institution, rather than the cap being distributed among perpetrating institutions)
The NRS undertake work with survivors and redress support services to determine appropriate alternative methods for the initiation of Direct Personal Responses and best practice guidelines.
The NRS undertakes consultation to amend the application form as a matter of priority. The amended form should be designed for survivors who may have low levels of literacy and allow care leavers to self-identify.
The NRS commence a series of face-to-face education sessions across Australia targeting known under-represented groups and regions. All sessions should be run by senior NRS employees and make provision for a question and answer component.
The NRS engage additional free legal services for survivors to access.
The NRS identify and fund legal services that can provide face-to-face, culturally diverse and trauma informed legal advice across regional, rural, and remote centres.
The Minister’s Redress Scheme Governance Board prioritise preventing the exploitation of survivors by private law firms and works to immediately implement the following measures:
Make it unlawful for lawyers to charge contingency fees for services delivered with respect to NRS applications;
Impose a legal obligation on lawyers to advise a potential client of the availability of free services (knowmore and the Redress Support Services), and to certify such advice has been provided, before executing a costs agreement for a NRS application;
Consider a cap on fees that lawyers can charge for services delivered with respect to NRS applications;
Make it an offence for any person to contact a person without their consent and solicit or induce them to make a NRS application; or give or receive any money or other benefit in exchange for a referral to make a NRS application;
Establish a set of expected practice standards for lawyers and survivor advocates providing services with respect to NRS applications; and
Establish a specific complaints process within the NRS to deal with concerns about the conduct of lawyers and representatives from survivor advocacy businesses.
The Australian Government work with all Australian states and territories to examine child safety measures in relation to institutions that refuse to join the NRS.
Funders of last resort arrangements are expanded to ensure that survivors of institutions who are unable or unwilling to join the NRS are able to receive all components of redress.
Funder of last resort provisions be expanded to ensure that all survivors can access the NRS if they wish to do so.
Future Parliament consider the establishment of a parliamentary committee to continue the work of providing oversight on the administration and operation of the NRS.
The Committee will proceed as required by its Resolution of Appointment to prepare a Final Report which will be finalised before parliament rises in May, 2022. The Committee is now accepting submission for that Final Report.
For those of you who may wish to read more about the Second Interim Report please click here.
An independent review into historic child abuse by Bob Higgins has concluded that Southampton Football Club failed to protect the boys in its care.
Southampton FC commissioned the review and has published the full report conducted by children’s charity Barnardo’s into historic abuse at the Club in the 1970s and 1980s, as well as its own response, on its website.
Higgins was found guilty of 46 counts of indecent assault on 24 victims, predominantly Southampton and Peterborough United trainees in the 1970s and 1980s, and was jailed for 24 years in 2019.
In November 2021 the New South Wales (“NSW”) state parliament passed the Civil Liability Amendment (Child Abuse) Act 2021.
This amending legislation allows the courts to revisit unfair settlements and agreements that may have been entered into by victims and survivors of child sexual abuse and serious physical abuse.
The courts can set aside such agreements if it is “just and reasonable to do so”.
Speaking at the passing of the amending legislation the NSW attorney general Mark Speakman said that “We are righting the wrongs of the past to ensure survivors can access the civil justice they deserve and be properly compensated for the appalling mistreatment they suffered as children.”
This amending legislation is one of a collection of legal changes over the last few years aimed at addressing the recommendations made by the 2015 Royal Commission into Institutional Responses to Child Sexual Abuse (which was established in 2013 and issued its final report in December, 2017).
Similar reforms have already been made in Queensland, Victoria, Tasmania, Western Australia and the Northern Territory.
It is expected that the new law will lead to a significant numbers of cases coming before the courts to be reviewed, the details of which were previously unknown as many were the subject of confidentiality and/or non-disclosure agreements.
The new law is quite specific in terms of the settlement agreements that can be set aside and says that it is the settlement agreements “for claims that were either impacted by the expiry of the limitation period or where an organisation was not incorporated and there was therefore no proper defendant to the cause of action, or both, if just and reasonable to do so.”
In determining whether it would be just and reasonable to set aside a settlement agreement, the court, which has been granted a very wide discretion, can consider the following factors:-
The amount of damages/compensation paid to the claimant at the time of the settlement
The respective bargaining positions of the parties to the settlement
The conduct of the defendant/s and their legal representatives, and
Any other matter the Court considers relevant.
An even more interesting development under the amending legislation is the fact that the court can also look at ‘without prejudice’ communications between the parties and/or their legal representatives which would usually be prohibited the law of evidence in NSW.
Interestingly the amending legislation does not empower the courts to set aside agreements under the Australian National Redress Scheme, certain agreements between defendants or contracts of insurance, this means that previous agreements between defendant’s and their insurers cannot be set aside.
Where the court exercises its discretion in favour of the claimant and sets aside a prior settlement agreement, the defendant does not recover the damages previously paid out they are instead taken into account by the court when assessing the new amount of damages to be paid to the claimant.
Prior to the enactment of this amending legislation there were also restrictions on how claims for child abuse that occurred in custody in juvenile justice facilities were determined but following the enactment of the amending legislation these claims will be treated in exactly the same way as a claim for child abuse that occurred in any other institutional setting.
These changes will have widespread consequences for private and public institutions in NSW and their insurers whom it is expected will now face increased numbers of new and reopened claims.
Defendants and their insurers will now have to put in places clear policies about the indefinite retention of files relating to such claims while also weighing such policies against their legal obligations under the Australian Privacy Act of 1988 as amended.
Insurers will no doubt want to look carefully at policy coverage for re-opened claims and depending on that wording defendants may find themselves without insurance for the re-opened claim.
As similar changes have already been introduced in other Australian states and territories at an earlier date than in NSW it will be important for defendants and insurers to keep a keen eye on how judgments from those other states and territories develop, as they are likely to be persuasive in how the NSW courts may approach the issue.
Here in England and Wales where the work of IICSA is ongoing and the final report has yet to be published, defendants and insurers are well advised to also keep a close eye on developments in Australia as it may well be that in an effort to strengthen the rights of survivors of child sexual abuse here into the future similar amending legislation may be introduced.
The controversial Police, Crime, Sentencing and Courts Bill is due to be considered further by the House of Lords today as it moves to the report stage. The proposed legislation will affect the whole of the United Kingdom.
Of relevance to abuse-related matters is the amendment of the Sexual Offences Act 2003 to widen the definition of a person in a position of trust, to include roles with religious or sporting affiliations. This follows on from recommendations made by IICSA in this regard and accepted by many of the organisations which will be impacted.
s46 of the bill sets out that “further positions of trust” are defined as follows:
For the purposes of sections 16 to 19 [of the Sexual Offences Act 2003] , a person (A) is in a position of trust in relation to another person (B) if –
A coaches, teaches, trains, supervises or instructs B, on a regular basis, in a sport or religion, and
A knows that they coach, teach, train, supervise or instruct B, on a regular basis, in that sport or religion.
“Religion” is defined as such so that no belief in a god is required. “Sport” is defined as any game in which physical skill is the predominant factor and any form of physical recreation which is also engaged in for purposes of competition or display. Both of these definitions will no doubt in time be subject to debate about interpretation.