Scottish in-care redress scheme to open for applications from 7 December 2021

This week, a committee at the Scottish Parliament approved regulations, link here, to bring all remaining provisions of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 into force on 7 December 2021.

Also this week, Scottish Government issued a statement of principles regarding financial contributions, link here, and a related information note, link here. In summary of certain key points:

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Scottish Child Abuse Inquiry publishes seventh set of case study findings

On 10 November 2021, the Scottish Child Abuse Inquiry (SCAI) published its seventh set of case study findings, link here. This set is about two residential schools run by the Marist Brothers, St Columba’s College in Largs and St Joseph’s College in Dumfries between 1950 and 1981, and is based on evidence heard from 43 witnesses between 3 October and 5 November, both 2019.

The main finding is that children at both schools were sexually, physically and emotionally abused, with both schools found to have had “flawed systems that allowed abusers driven by sexual motives to have easy access to children in their care... A culture of obedience, fear of severe punishment and the authority of the Catholic Church” are found to have “empowered abusers, and, conversely, rendered many victims powerless in the belief that their complaints of abuse would not be believed.” Such reports of abuse as were made “were not taken seriously or investigated as they should have been. In a few cases, action was taken, usually moving a Brother on to another post elsewhere. None of the reports of serious abuse made to Brothers were passed on to the police at the time.”

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The latest on the Scottish in-care redress scheme

On 27 October 2021, the Education, Children and Young People Committee at the Scottish Parliament heard evidence from John Swinney, Deputy First Minister in the Scottish Government, on the continuing work to set up the Scottish in-care redress scheme and on particular pieces of secondary legislation in connection with this scheme. A link to the official report of this committee meeting is here.

Potential contributors and the “fair and meaningful” principles

As confirmed in our previous blog, here, as at 13 September 2021, no final agreements had been reached for any contributions to the scheme. Mr Swinney did not mention the position on this when giving evidence to the committee on 27 October. He did, though, explain that Scottish Government are “still going through some fairly sensitive negotiations about provider contributions” and that the final version of the “fair and meaningful principles” to be applied by Scottish Government in determining whether a contributing organisation should benefit from the waiver provisions of the scheme “will be published when we launch the scheme”, which remains anticipated by the end of 2021.

The waiver

Draft secondary legislation on the form and content of the waiver was discussed, with the position remaining as summarised in our previous blog, here. If the committee wishes to produce a report on these regulations, it must do so by the end of this month.

Exceptions to eligibility

Draft secondary legislation on exceptions to eligibility for redress payments was also discussed. These provide that if a person was abused when resident in a relevant care setting for short-term respite or holiday care as arranged by a parent or guardian, any such abuse may not be used as the basis for a redress application. The committee has until 16 November 2021 to produce a report on these regulations if it wishes to do so.

Legal fees and other costs

The secondary legislation already in place on legal fees and other costs in connection with the redress scheme was considered. The position on this remains as confirmed in our previous blog, here, though the committee’s convener observed that there are “ongoing discussions” with the Law Society of Scotland on concern raised by some in the legal profession that the fixed expenses may not provide adequate remuneration where a solicitor appears before a redress panel in person. The committee has until 8 November 2021 to produce a report on these regulations if it wishes to do so. 


Frank Hughes, Partner and Fiona McEwan, Associate
frank.hughes@blmlaw.com and fiona.mcewan@blmlaw.com

Substantial judicial award for non-recent childhood abuse in Scotland

Before 21 October 2021 there were only two Scottish judicial awards reported within the previous 10 years for injuries and related losses caused by childhood abuse. The decision in this area by Lord Brailsford in A v Glasgow City Council, dated 13 and reported 21, both October 2021 (link here) is therefore of considerable significance albeit this first instance decision is made on the facts and circumstances of this particular case and is not binding law. The total award made was £1,339,185 excluding interest. This is considerably higher than the £317,000 award, inclusive of interest, in T v The English Province of the Congregation of Christian Brothers, Sheriff McGowan, ASPIC, 30/1/20, reported 5/3/20 (link here) and the £148,000 and £33,000 awards, both inclusive of interest, respectively made in A v C and B v C, Lord Doherty, Court of Session, 15 June 2018 (link here).

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Further Scottish judicial consideration of vicarious liability and the fair hearing and substantial prejudice defences in non-recent childhood abuse claims

Denis Alexander was sentenced on 30 July 2021 to four years and five months imprisonment and placed on the Sex Offenders’ Register indefinitely after pleading guilty to two charges of lewd, indecent and libidinous practices against boys aged between 12 and 14 when he was a monk and teacher at Fort Augustus boarding school in the Scottish Highlands in the 1970s. The school was run by a Benedictine community operating as a Trust.

Hugh Kennedy presently seeks £5m in compensation for injuries and related losses said to have been caused by physical and sexual abuse at the school in the mid-1970s at the hands of Mr Alexander and two lay teachers who are understood to now be deceased. The main questions for the court after hearing legal argument but no evidence in this case, Hugh Kennedy v The Right Reverend Paul Bonnici, The Right Reverend James Warren Cuthbert Madden and Denis Alexander, Lady Wolfe, Court of Session, 20 October 2021 (link here), and the court’s answers are summarised here:

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An update on work at the Scottish Child Abuse Inquiry

The scheduled return to witness hearings at the Scottish Abuse Inquiry’s (SCAI) new venue at Mint House, 20 West Register Street, Edinburgh, was postponed from 6 to 8 October 2021. On reconvening in the morning of 8 October, Lady Smith, Chair of SCAI, apologised for the delay, explaining that it was “unavoidable and was due to the requirements of the last items of snagging work.”

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An update on the Scottish in-care abuse redress scheme

Scottish Government has recently released its twelfth information note on the Scottish in-care abuse redress scheme, link here. Key points include that:

  • The scheme “is on schedule to open for applications in December 2021”.
  • The scheme will be run by two organisations – the Scottish Government Redress Division which will administer the scheme and provide support to apply and the new independent body, Redress Scotland, which will make decisions on applications.
  • Joanna McCreadie, formerly of The Gannochy Trust community and housing organisation, has been appointed as Chief Executive of Redress Scotland, with Johnny Gwynne, formerly of Police Scotland and the National Crime Agency, already in post as Chair of Redress Scotland. Recruitment of Redress Scotland panel members is ongoing.
  • Redress Scotland is working with StudioLR on a website and “brand identity”.

In other developments, secondary legislation is now in place on legal fees to be paid for work done on scheme applications. The fees for completed first applications are £450 for work on a fixed rate redress payment application or a next of kin application and £2,000 for work on an individually assessed redress payment application. VAT is payable in addition to these fees and certain outlays may also be recovered. Applications may be made for additional fees in “exceptional or unexpected circumstances.

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Scottish multi-party action being raised against Celtic Football Club

Multi-party, or group, litigation is being issued in Scotland against Celtic FC in respect of the non-recent abuse of children at Celtic Boys Club. This litigation is likely to bring into sharp focus the question of whether there was a sufficient institutional connection between the main football club and the boys club for liability for the actions of certain adults at the boys club to attach to the main club. In law and as expressed by Lady Hale in the United Kingdom Supreme Court case of Barclays Bank plc v Various Claimants, 1 April 2020, one of the key questions will be whether there was a relationship between main club and the abusers at the boys club “which makes it proper for the law to make one pay for the fault of the other.” Traditionally the law confined such relationships to those of employer and employee but the law has developed to also now allow liability to attach under the doctrine of vicarious liability where the relationship is one sufficiently akin to employment. Though decided in the English Court of Appeal, the recent judgment in Blackpool FC Ltd v DSN [2021] EWCA Civ 1352 is likely to be considered in the current Celtic litigation. In the Blackpool case, the Court of Appeal held that the relationship between the football club and a man who ran an unofficial feeder club was insufficient for vicarious liability, in part because the football club did not exert control over the man’s activities. The Blackpool case is more fully analysed is our blog here.  

Group litigation – sometimes known as collective redress, multi-party or class actions – has been enabled in Scotland from 31 July 2020. Scottish group proceedings are only competent at the Court of Session and may proceed only with the permission of a judge on an application by a “representative party”. Under the opt-in model used for Scottish group proceedings, the court’s decision in a particular collective case will extend only to those individuals who have subscribed to the group proceedings action. A positive outcome for a representative party in a group action will not be able to be relied upon by anyone who did not opt-in. Non-subscribers will not be bound to accept a settlement from the defender and could raise their own claim.

Those representing the claimants in these proceedings have indicated that more than 20 claimants are presently involved though a public notice is being issued which may increase this number.


David Milton, Partner and Fiona McEwan, Associate at BLM

(david.milton@blmlaw.com / fiona.mcewan@blmlaw.com)

Catholic Church in Scotland to establish a new safeguarding agency

The Catholic Church in Scotland has announced the creation of a new safeguarding agency. Speaking this month at the end of a national safeguarding webinar which attracted 450 participants from across Scotland, Bishop Hugh Gilbert, President of the Bishops’ Conference of Scotland, announced the establishment of this new body – the Scottish Catholic Safeguarding Standards Agency (SCSSA) which will be run as an independent private company.

Speaking to the webinar participants, Bishop Hugh Gilbert said: “The SCSSA will operate entirely independently of the Church and will have its own staff and Board of Management who will work in close collaboration with dioceses and religious communities to ensure that they are able to meet national safeguarding standards. It will also develop a process that will provide an independent review of complaints about safeguarding practice and, crucially, establish a forum in which those who have experienced abuse can contribute their own perspectives to the development of safeguarding.”

Bishop Hugh added: “We will shortly commence the recruitment process for the Chair and members of the Board of Management, followed by the recruitment of a Director and a Head of Safeguarding Training.”

The Scottish Child Abuse Inquiry has already issued certain case study findings on the abuse of children at premises run by various Catholic orders in Scotland with further case study findings in respect of another Catholic order, the Marists, due for publication shortly.

Written by Frank Hughes, Partner and Fiona McEwan, Associate at BLM

(frank.hughes@blmlaw.com / fiona.mcewan@blmlaw.com)

An update on work at the Scottish Child Abuse Inquiry including publication of findings on Scottish Government evidence

On 29 September 2021, the Scottish Child Abuse Inquiry (SCAI) published its sixth set of case study findings, this time on evidence heard between 17 November and 4 December 2020 relating to Scottish Government and, in particular, the 13 year delay in the setting up of a child abuse inquiry in Scotland after a petition calling for such an inquiry was submitted to the Scottish Parliament. The findings describe this delay as “woeful and wholly avoidable”, adding that “Scottish Government failed to grasp the fundamental importance that survivors appropriately and justifiably attached to their need for justice, accountability and redress.” The delay between the submission of the petition in 2002 and the decision at the end of 2014 to hold an inquiry is found to have been caused by a variety of factors including “some ineptitude”, “some confusion on the part of ministers and officials”, “officials controlling the process up to the point of trying to prevent there being an inquiry” and “both ministers and officials failing to listen to and engage with survivors”. A link to these findings is here. The current Scottish Government has responded to these findings by apologising “unreservedly that it did not respond more appropriately and sooner to the concerns of survivors of abuse in care who called for a public inquiry”, also noting that “Responding to survivors of abuse in care spanned different administrations between 2002 and 2014.”

Also on case study findings and as confirmed in an autumn 2021 SCAI newsletter, here, SCAI will shortly publish a seventh set, with this set on institutions run by the Marists.

In other news, SCAI has moved to new premises at Mint House, 20 West Register Street, Edinburgh where it will hear further evidence on boarding schools from 6 October 2021. SCAI last sat to hear evidence in May 2021 when the focus was on boarding school provision at Loretto School in Musselburgh and Morrison’s Academy in Crieff. Evidence from 6 October will relate to Gordonstoun School in Elgin, Queen Victoria School in Dunblane, Keil School in Dumbarton, Fettes College in Edinburgh and Merchiston Castle School in Edinburgh.

SCAI hopes to start hearing evidence as part of a foster care case study in spring 2022, including on children who were boarded out as well as children who were placed in foster care by a Scottish local authority. It remains to be seen whether any more case studies will follow after the foster care one. SCAI previously confirmed investigations into 4 young offender institutions, 3 local authority establishments and 3 further schools but has not yet confirmed whether evidence will be heard in public on any of those.

SCAI was established as a statutory inquiry under the Inquiries Act 2005 on 1 October 2015 with an overall aim of raising public awareness of the abuse of children in care (under 18) for the period “within living memory” of any person who suffered such abuse to no later than 17 December 2014. SCAI’s work will conclude with a report to Scottish Ministers. This report was originally to be delivered by October 2019 but the deadline for it was extended before the COVID-19 pandemic to “as soon as reasonably practicable” after then.

SCAI publishes a running total of its costs quarterly. SCAI’s total cost from 1 October 2015 to 30 June 2021 was £46,874,090. Updated expenditure should be published around 15 October 2021.


Frank Hughes, Partner and Fiona McEwan, Associate at BLM

frank.hughes@blmlaw.com / fiona.mcewan@blmlaw.com