Further detail on the waiver for Scottish in-care redress payments

Further detail on the waiver for Scottish in-care redress payments has emerged with the publication of draft regulations on the form and content of the waiver here and an accompanying policy note here. The draft regulations refer to a 1 December 2021 implementation date, in keeping with an earlier Scottish Government commitment that the redress scheme will be open for applications by the end of this year.

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Scottish Child Abuse Inquiry publishes fifth set of case study findings

On 11 August 2021, the Scottish Child Abuse Inquiry (SCAI) published its fifth set of case study findings, link here. These findings arise from evidence heard from 43 witnesses at public hearings between 18 July and 1 October, both 2019, on the provision of residential care in boarding schools run by the Benedictine monks of Fort Augustus Abbey between 1948 and 1991 at Carlekemp Priory School, North Berwick, and Fort Augustus Abbey School, Inverness-shire. Fort Augustus Abbey was a member of the English Benedictine Congregation (EBC) for much of its existence.

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Review of work done and update on ongoing work at the Scottish Child Abuse Inquiry

The Scottish Child Abuse Inquiry (SCAI) is moving premises. On various dates between May 2017 and May 2021, SCAI held public hearings at Rosebery House, near Haymarket in the west of Edinburgh. SCAI is moving to new premises just off St Andrew Square in the east of Edinburgh. SCAI’s final public hearing at Rosebery House was held on 27 May 2021 when closing submissions were heard on a case study concerning Scottish boarding schools. SCAI’s hope is for public hearings to resume at the new St Andrew Square premises on a date to be confirmed in September 2021. When hearings resume, the focus will initially remain on Scottish boarding schools.

SCAI’s move over summer 2021 provides an opportunity to reflect on certain work done by the inquiry to date and certain work which it intends to do in the future.

Certain work done by SCAI to date

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 has published four sets of case study findings after hearing evidence and submissions at public hearings. These findings are on questions of abuse of children in care at certain premises run by the Daughters of Charity (link here), the Sisters of Nazareth (link here), Quarriers, Aberlour and Barnardos (link here) and the Christian Brothers (link here). No recommendations are made in any of the case study findings published so far. Recommendations will likely be included in the final report of SCAI to Scottish Ministers.     

SCAI has also commissioned and published various reports, for example and most recently on abuse and child migration from Scotland (link here) and on historical child protection matters (link here).

Certain work which SCAI intends to do in the future

The next set of case study findings to be published by SCAI will likely be on questions of the abuse of children in care at certain premises run by the Benedictines. On 27 May 2021, Lady Smith, chair of SCAI explained that: Those findings were written some time ago and they are ready for publication.  I am acutely aware that there are many people who are keenly waiting to read them and who will be, quite understandably, disappointed at any delay in publication. However, after giving careful consideration to certain current circumstances, I have, with considerable reluctance, decided not publish them at the moment even though I am in a position to do so and, indeed, very keen to do so.  I do want to stress, though, that these circumstances have not been created by the Inquiry and are unrelated to the work of the Inquiry. I also want to make it absolutely clear that I am keeping the position under constant review and as soon as I consider it is appropriate to make my findings public then – to those who are waiting to read what I have to say about the Benedictines’ treatment of children in their care at Fort Augustus and Carlekemp – please rest assured, I will do so.”

Further case study findings are then likely to be published in relation to certain premises run by the Marists and, separately, in respect of Scottish Government in the context of its developing knowledge of issues of child abuse and its handling of calls for an inquiry. SCAI is also likely to produce case study findings on child migration and, separately, boarding schools.

Further public hearings, possibly leading to further case study findings, might also be arranged on additional topics to take place after the current boarding schools case study including, for example, foster care provision, young offender institutions, certain local authority establishments and certain further schools. A foster care case study was mentioned in SCAI’s spring / summer 2020 newsletter, here, with this newsletter also announcing investigation into 4 young offender institutions, 3 local authority establishments and 3 further schools. These further investigations are not specifically mentioned in either of SCAI’s autumn / winter 2020 newsletter, here, nor the latest spring 2021 newsletter, here, but both of these more recent newsletters make clear that SCAI is continuing to reach out for further evidence through a “talk to us” strategy and the spring 2021 newsletter mentions a nationwide homeless community outreach campaign. 

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.

Cost of SCAI

SCAI publishes a running total of its costs quarterly. Total expenditure to end June 2021 should be confirmed on or around 15 July 2021. SCAI’s total cost from 1 October 2015 to 31 March 2021 was £43,856,561.

Written by Fiona McEwan, Associate at BLM fiona.mcewan@blmlaw.com

Update on Scottish in-care abuse redress scheme

On 16 June 2021 the Deputy First Minister of Scotland, John Swinney MSP, updated the Scottish Parliament on behalf of the Scottish Government on progress with the development and delivery of the Scottish redress scheme.

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Scottish in-care redress bill passes stage 3

On 11 March 2021, the Scottish Parliament unanimously passed the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. A link to the bill as passed is here.

The bill will now proceed to Royal Assent to become an Act of the Scottish Parliament. Implementation will follow by subsequent ministerial regulations.

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Scottish in-care abuse redress bill passes stage 2 after amendment

On 17 February 2021, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill passed stage 2 of the three stage Scottish legislative process. This stage was carried out by the Education and Skills Committee of the Scottish Parliament. Over two meetings, the committee considered 139 proposed amendments to the bill. The bill as amended at stage 2 is here. No date has yet been set for stage 3 consideration of possible further amendments by the Scottish Parliament, sitting as a whole in chamber, or for the final debate and vote at stage 3 on whether to pass the bill. There does, however, appear to be considerable cross-party political will for this to happen on or before Thursday 25 March 2021 when the parliament will enter recess ahead of the 6 May 2021 Scottish Parliamentary election.

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Scottish Child Abuse Inquiry publishes fourth set of case study findings

On 17 February 2021, the Scottish Child Abuse Inquiry (SCAI) published its fourth set of case study findings.

The latest findings follow evidence heard at Phase 4 of SCAI’s public hearings between 4 June and 16 July, both 2019 on a residential care home, St Ninian’s in Fife, run by The Christian Brothers, a male, Catholic, religious order. The findings cover the period between 1953 and 1983. A link to the findings is here.

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Scottish Football Association publishes final independent report on sexual abuse in Scottish football

On 11 February 2021, the Scottish Football Association (SFA) published a final, independent report on sexual abuse in Scottish football. This report – link here is dated July 2020. The reasons, if any, for the delay in publication are unclear.

The report comprises three sections, broadly covering:

  • Individual accounts of the events and incidents of non-recent child sexual abuse in Scottish football mainly occurring in the 1970s, 80s and 90s;
  • The safeguarding “journey” within Scottish football from the 1990s until recent years; and
  • The current arrangements and issues in Scottish football related to the wellbeing and protection of young people from sexual abuse and exploitation.
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Scottish Sheriff Appeal Court clarifies certain aspects of the “fair hearing” defence

The Scottish legislation which retrospectively abolished limitation in personal injury claims arising from childhood abuse expressly retained defences where a fair trial would be “impossible” and where the retrospective effect of the abolition of limitation gives rise to “substantial prejudice” to the defender sufficient to outweigh the interests of the pursuer in the case proceeding.

In a previous blog (link here), we commented on the sheriff’s decision in LM v The Executor of DG. This was the first reported judgment on the fair hearing defence. After hearing legal argument, but no evidence, the sheriff refused to dismiss the case on the basis of the fair hearing defence but neither upheld nor rejected the defence, deciding instead that evidence would need to be heard first. So, the sheriff fixed a proof (evidential trial) on all issues.

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