As of April 2022, the Australian National Redress Scheme (NRS):-
Had received 15,280 applications.
Made 9,417 decisions – including 8,087 payments, totalling over AUS$700.1 million, with an average award of redress of AUS$86,566.
Had made 9,167 offers for redress. (Readers of this Blog will be aware that Applicants to the NRS have six months to consider their offer of redress).
5,638 applications are currently being progressed.
710 are on hold or paused, including 113 applications due to institution not participating (representing 1.8% of applications on hand).
The total number of applications finalised and redress payments from establishment to date are 8,476 applications with redress of AUS$700.1 million having been paid out to date.
There still remains a number of institutions that were either named in the Royal Commission and/or in an application made to the NRS that have failed to join the NRS and they are:-
CYMS Basketball Association, VIC
Devonport Community Church, TAS
Forrest Tennis Club, ACT
Kenja Communication, NSW
Woodlands Golf Club, VIC
As previously advised these institutions will have financial sanctions applied and may lose their charitable status until such times as they join the NRS.
However, the ongoing effectiveness of the NRS (where the average award of redress is AUS$86,566) in finally determining claims relating to CSA must surely be impacted by very significant damages that claimant’s are recovering in the Courts in Australia.
In our Blog on New South Wales Supreme Court, we commented on a recent judgement handed down by the Supreme Court in New South Wales where damages totalling AUS$1,353,850 including AUS$400,000 for general damages and AUS$40,00 for aggravated damages were awarded to a defendant who was sexually assaulted when he was aged between 14 and 16 years old.
This has been recently followed with an award of AUS$1.9 million to a former altar boy who brought a civil claim against Melbourne’s archbishop, Peter Comensoli, claiming the Catholic Archdiocese of Melbourne was vicariously liable for him being sexually abused by Victorian priest Desmond Gannon.
It is likely that this is one of the contributing factors to the sluggish rate at which applications for redress are being received by the NRS.
The Scottish Child Abuse Inquiry (SCAI) is now hearing evidence, at public sessions and both in person and by video link, on the abuse of children in foster care, including on children who were boarded out. This phase of evidence started on 3 May 2022 and is expected to run until autumn 2022.
Before the current phase on foster care, SCAI broke new ground by hearing from various experts over two days in March 2022 at “round table” evidence sessions. These focused on the psychology of individual adult abusers in the context of preventing the abuse of children in care. Between 1 and 8 June 2022, written submissions were lodged by the experts who attended these sessions and also by certain other experts.
SCAI heard closing submissions on evidence relating to boarding schools on 17 February 2022. This phase of evidence involved over 220 witnesses and nearly 20,000 documents. In due course, SCAI will publish case study findings on the boarding school evidence. Case study findings on evidence heard previously on child migration also remain to be published. To date, SCAI has published seven sets of case study findings.
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.
To 31 March 2022, SCAI had cost £55,309,420, with £3,654,009 expenditure incurred from 1 January 2022 to 31 March 2022 alone.
The HIA Redress Board in Northern Ireland published its key Business Performance Summary as of the 31 December 2021, in early January 2022. As of 31 December 2021, the HIA Redress Board received 2,267 applications, 186 of those applications have not been processed to date, as they remain incomplete.
Of the 2081 complete applications received the current status of the same are as follows:
Waiting for further information 108
Outstanding queries relating to statutory information requirements 111
Validated to be allocated for listing review 58
Validated scheduled to be listing in January, 2022 95
Initial Payment Order made and still in place 25
Adjourned by panel for further consideration 72
Finally determined 1,474
Final Determination – Appeal Outstanding 61
Withdrawn before a panel 77
As at 31 December ’21 the HIA Redress Board has paid out £34,006,500, following section 13 actuarial adjustments £33,122,876 was payable to applicants (Section 13 allow certain actuarial adjustments to be made to an award of redress where the applicant for redress has previously been paid compensation for having suffered the abuse the subject of the redress application).
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:
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.
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 firstname.lastname@example.org and email@example.com
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.
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.
The Commission of Investigation into Mother and Baby Homes said that former residents of the institutions investigated by the Commission had raised the issue of redress with them. Former residents sought redress for what they considered to be the wrongs done to them in those institutions and/or by society generally.
The Commission, in making its recommendations, noted that:
redress can be in the form of enhanced services or financial payments and
Former residents of the institutions investigated felt that an apology would also be appropriate.
The Commission said that counselling and enhanced medical cards should be made available to those former residents who need them.
The Commission was clear that any decision to provide financial redress is a matter for the Irish Government.
If redress is to be considered for former residents of mother and baby homes, the Commission said that the relevant comparable redress schemes are the Residential Institutions Redress Scheme (RIRS) and the Magdalen laundries scheme.
In the Commission’s second Interim Report in August, 2016 it reported that it felt that there were inconsistencies in the decisions made to include/exclude some institutions from the RIRS. In its final report the Commission remained of this view and said that the exclusion of children from the Children’s Home at Tuam from the RIRS as “most egregious” as it was a local authority home where “many children” stayed until they were seven years or older.”
The Commission noted that the criterion for the inclusion of an institution in the RIRS was “whether or not a public body had a regulatory or inspection function in respect of that institution.” and concludedthat it was “abundantly clear that all institutions investigated by the Commission meet this criterion.” The implication being that these institutions could have been included in the RIRS from the outset.
The Commission further noted that the RIRS applied to children under the age of 18 and therefore if the RIRS (which is still in existence) was extended to the institutions under the remit of the Commission a number of mothers would be eligible to apply to the RIRS for redress.
The Commission also thought that children who had spent time in the Children’s Home at Tuam, Bessborough in Cork, Castlepollard in Westmeath, Sean Ross in Tipperary, the Bethany and Denny homes in Dublin should all be eligible to apply to the RIRS for redress.
However, the Commission went on to remark that those children, some of whom had spent very short periods in the institutions, “would find it very difficult to establish they had been abused” for the purpose of having redress awarded to them under the RIRS.
Children who had spent time at Belmont, Miss Carr’s, the Castle and the Regina Coeli resided in these institutions with their mothers and so the Commission was of the view that the issue of financial redress did not arise for these children.
The Commission was however satisfied that all the former child residents in the four county homes it investigated, who were resident in those institutions without their mothers should also be eligible for any financial redress package announced by the Irish Government.
The Commission also commented on the women who were resident in the Magdalen laundries who received ex-gratia payments because they were considered to be incarcerated and were made to do commercial work for no pay. Although the women in the mother and baby homes were not in the exact same position, the Commission was satisfied that there were some similarities between the two groups and as such that it may be suitable to consider a similar ex-gratia type payment to the women in the mother and baby homes.
There was evidence that some of the women in these institutions had carried out unpaid work on behalf of the local authority or the institutions. The Commission found that if this was the case that these women should be eligible to apply to the Magdalen laundry scheme.
The Commission concluded by saying that those women who spent lengthy periods (in excess of six months) in mother and baby homes should be considered for redress on the same basis as the Magdalen Laundry Scheme. The payment made related to the time spent in the institutions. The Commission settled on six months as the cut off period in terms of being eligible for this proposed redress as six months was the average length of time that women spent in mother and baby home outside of Ireland.
However, the Commission was clear that after the introduction of the Unmarried Mother’s Allowance in 1973 things changed and women had other options and as such those women who entered a mother and baby home after 1973 did not have a case for financial redress.
Since the publication of the final report the Irish Government has issued a State Apology.
On 13 January, the Irish Prime Minister, Taoiseach Michael Martin apologised on behalf of the State for the “profound generational wrong visited upon Irish mothers and their children” in mother and baby homes and county homes”. Mr. Martin said “the Irish State funded these institutions” and had authority for directing their operation. “This authority was not exerted, and the State’s duty of care was not upheld. The State failed you, the mothers and children, in these homes.”
The Roman Catholic Church in Ireland and those religious and other charitable organisations responsible for operating several mother and baby homes have also issued separate apologies.
It has also been confirmed at the end of last week that Minister for Children Roderic O’Gorman has written to the primates of the Church of Ireland and the Roman Catholic Church, as well as to the religious congregations and the associated charities asking them to read the report of the Commission of Investigation into Mother and Baby Homes and meet him to discuss their own apologies to victims, contributions to the redress fund and access to records for survivors.
Minister O’Gorman has given a commitment to bring forward proposals for a redress scheme by the end of April 2021.