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 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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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

Australian Redress Scheme amended to make provision for elderly and terminally ill – National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021

Legislation to amend the Australian National Redress Scheme (NRS) was passed on 2 September 2021 and came into force on the 13 of September 2021.

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021(the 2021 Act) implements the following recommendations of the final report of the second year review of the NRS by amending the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 as follows:-

  • provide for advance payments of AUS$10 000 to elderly or terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people
  • change the date for which the indexation of relevant prior payments is calculated
  • extend the acceptance period of a redress offer after it has expired and provide for the period within which to seek a review to be aligned with any extension to the acceptance period
  • remove the requirement for an application to include a statutory declaration, and
  • provide for redress payments and counselling and psychological care payments to be made in instalments rather than as a lump sum, if requested by an applicant.
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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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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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Irish Commission of Investigation into Mother and Baby Homes makes recommendations on redress

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.

Enhanced services

The Commission said that counselling and enhanced medical cards should be made available to those former residents who need them.

Financial redress

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.

State apology

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.


Katrina Gray, Partner, BLM
katrina.gray@blmlaw.com

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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IICSA, the Anglican and Roman Catholic churches and Redress

In this our second blog comparing the recent reports published by IICSA into the Anglican and Roman Catholic churches we look at redress and accountability.

IICSA has reviewed the varying approaches taken with respect to redress across the Anglican Church and Roman Catholic Church, looking at how victims are compensated financially in addition to emotional support and apologies given.

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IICSA summary of victims and survivors views on redress

On 14 October, IICSA published a summary of victims and survivors’ views on redress.

The Victims and Survivors Forum (the Forum) is open to all victims and survivors of child sexual abuse. It was set up to facilitate IICSA’s engagement with victims and survivors, making it easier to ask questions, offer suggestions, and for IICSA to gather the views of victims and survivors.

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