Another substantial award for non-recent childhood abuse in Scotland

Although the full decision has not yet been put in the public domain, it was reported last week, both on the BBC (link here) and widely in the press, that a 173 page judgment, making another substantial award of damages for non-recent childhood abuse in Scotland, has recently been handed down by Sheriff Dickson sitting at the All-Scotland Personal Injury Court (ASPIC).

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An update on the Scottish Childhood Abuse Inquiry

The Scottish Childhood Abuse Inquiry (SCAI) resumed hearing evidence on 11 January 2022, with the focus on Merchiston Castle School as part of the Boarding Schools case study. The next part of this study will be closing submissions, probably at the end of February 2022.

The next evidence, likely to be heard in March 2022, will relate to SCAI’s work on the prevention of the abuse of children in care, comprising expert witness evidence on the psychology of those who commit such abuse. These experts will give their evidence together in a group, probably over two days.

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Scottish court withholds childhood abuse claim from trial by a civil jury

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.

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Further detail released on Scottish in-care redress scheme as it opens for applications

As previewed in our blog here, the Scottish in-care redress scheme is now open for applications. 

In a statement to the Scottish Parliament on 8 December 2021, the Scottish Deputy First Minister, John Swinney MSP, provided further detail on the scheme, including that:

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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

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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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