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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Scottish Child Abuse Inquiry: an update

On 6 January 2021, Lady Smith, chair of the Scottish Child Abuse Inquiry (SCAI), reluctantly postponed hearings to examine the abuse of children in boarding schools because of new COVID-19 restrictions. These “phase 6” hearings, concerning seven boarding schools, had been scheduled to start in the second half of January 2021. This phase of evidence will be rescheduled “as soon as possible.”

To date, SCAI has published three sets of case study findings on evidence heard between November 2017 and February 2019 in phases 2 and 3 but has not yet made any recommendations.

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Scottish in-care abuse redress bill passes stage 1

On 17 December 2020 – following a two hour debate in the chamber of the Scottish Parliament – the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill passed stage 1 by unanimous collective consent when the parliament agreed to the general principles of the bill. The bill is now within stage 2 of the 3 stage legislative process. Amendment to the detail of the bill is highly likely during stage 2. In this blog, we highlight certain areas where amendments are likely to be proposed and assess the likelihood of those amendments passing. In considering the content of this blog, it is important to remember that, in the current fifth session of the Scottish Parliament –  which will continue until dissolution ahead of a 6 May 2021 election – the governing administration is in a minority but can often command support from other parties.

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Scottish parliamentary committee publishes Stage 1 report on Scottish in-care redress bill

On 9 December 2020, the Education and Skills Committee at the Scottish Parliament published a 127 page report on the Scottish in-care redress bill after hearing evidence over a number of sessions (link here). The Scottish Parliament, sitting in chamber, will debate and vote on the general principles of this bill on 17 December 2020.

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Further Scottish Parliamentary evidence session on in-care redress bill

On 4 November 2020, the Education and Skills Committee of the Scottish Parliament took evidence on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill from CrossReach (a Church of Scotland charity), Quarriers (a social care charity), the Office of the Scottish Charity Regulator (OSCR) and the Convention of Scottish Local Authorities (COSLA, representing Scotland’s 32 local councils). The committee then heard from the Scottish Government Minister in charge of the Bill, John Swinney MSP, Cabinet Secretary for Education and Skills and Deputy First Minister.       

Money was a recurring theme throughout the three hour session, both in terms of contributions sought by Scottish Government to the scheme and the proposed banding of redress payments.

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Scottish parliamentary committee hears evidence on Scottish in care redress bill

On 30 September and 7 October 2020, the Education and Skills Committee at the Scottish Parliament heard evidence on a wide range of aspects of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. This blog focuses on certain evidence heard on one of the most contentious aspects, the requirement that a survivor must waive, to a defined extent, his or her right to seek civil compensation in court in exchange for a redress payment.

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Righting wrongs and entrenching rights: ongoing activity in Scotland

Followers of this blog will be aware that the Scottish Parliament’s Education and Skills Committee has issued a call for views on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. This legislation seeks to right certain wrongs of the past by means of financial redress for survivors of childhood (under 18) abuse in relevant in-care settings. The call for views closes on 2 October 2020.

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Scottish Child Abuse Inquiry: an update

On 15 September 2020, the Scottish Child Abuse Inquiry (SCAI) plans to resume hearing evidence relating to the child migration case study. Evidence on Scottish Government knowledge of and response to abuse is planned for mid-November 2020.  A case study examining the abuse of children in boarding schools is expected to start in early 2021.

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Parliamentary call for views launched on Scottish in-care redress bill

On 24 August 2020 the Education and Skills Committee at the Scottish Parliament launched a call for views on the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

  • A link to the call for views is here. A link to guidance issued on creating a submission in response to this call is here.
  • The closing date for responses is 2 October 2020.
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Scottish Redress Bill discussed in Scottish Parliament

In the morning of 19 August 2020 the Education and Skills Committee of the Scottish Parliament considered, in private, its approach to the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. This committee will be scrutinising the bill at Stage 1 of the three stage Scottish legislative process. That afternoon, the Deputy First Minister of Scotland and Cabinet Secretary for Education and Skills, John Swinney MSP, delivered a statement in the parliament’s chamber on the bill and took questions on it.

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