Scottish Ministers have set 4 October 2017 as the appointed day on which the Limitation (Childhood Abuse) (Scotland) Act will come into force.
From 4 October, the three year limitation rule will be abolished, with retrospective effect, in respect of injury cases, whether physical, psychological or both, arising from childhood abuse. The Act will apply if the abuse started before a person reached the age of 18. Abuse is widely defined, on a non-exhaustive basis, as including sexual abuse, physical abuse, emotional abuse and abuse which takes the form of neglect. The onus will remain on the claimant to establish, on the balance of probabilities, a causative link between the abuse and the injury.
Safeguards are provided in the Act for defenders, in their entitlement to a “fair hearing” and to consideration of whether they will suffer “substantial prejudice” if the case proceeds, sufficient to outweigh the claimant’s interest.
Written by Frank Hughes and Siobhan Kelly, BLM
The third and final legislative stage of the Bill to retrospectively abolish limitation for cases of personal injury arising from childhood abuse took place in the Chamber of the Scottish Parliament on 22 June 2017.
A proposed amendment to require Scottish Ministers to prepare a financial report on the likely impact on public bodies and their ability to meet any obligations arising from the retrospective provisions of the Bill was rejected.
Following that rejection, the Bill was unanimously passed. Royal Assent to the Bill is now anticipated, whereupon it will become an Act of the Scottish Parliament. Its provisions will thereafter come into force by way of Scottish ministerial regulations.
Frank Hughes and Siobhan Kelly, partners, BLM
Stage two of the three-stage legislative progress of the Bill to retrospectively abolish limitation for childhood abuse cases was completed on 23 May 2017, after the Justice Committee of the Scottish Parliament considered proposed amendments. We summarise those and the Justice Committee’s decisions on them, as follows:
- Definition of “abuse”: the Justice Committee agreed, unanimously, to an amendment to include, as an explicit part of the present non-exhaustive definition, “abuse which takes the form of neglect”.
- Requirement for a report on resources: the Justice Committee rejected a proposed amendment that would have required Scottish Ministers to prepare a financial report on the likely impact on public bodies and their ability to meet any obligations arising from the prospective legislation.
Separately, the Scottish Child Abuse Inquiry has published more detail on phase one of its public inquiry hearings. Those will be held between 31 May and 12 July 2017. The agenda for the first week, 31 May – 2 June comprises: opening statements from a wider group of organisations than those presently designated as “core participants” in the Inquiry, followed by expert evidence on background and contextual research.
The opening statements will be heard from survivors groups, Quarriers, Barnardos and a host of Roman Catholic religious orders and governing institutions as well as the Church of Scotland.
Written by Frank Hughes and Siobhan Kelly, partners at BLM
The Scottish Parliament has confirmed that it will debate the Limitation Abolition Bill, at Stage 1, in the afternoon of Thursday 27 April.
In other news, the Scottish Child Abuse Inquiry, whose cost from its set-up on 1 October 2015 to 31 March 2017 has recently been confirmed at over £5.7m, has now set the timetable for Phase 1 of its Public Hearings. Commencing on 31 May there are evidence sessions scheduled to 9 June covering: Continue reading
The third, and final, evidence session on the Bill to retrospectively abolish limitation in cases of childhood abuse took place today before the Justice Committee of the Scottish Parliament.
The Scottish Minister for Community Safety and Legal Affairs, Annabelle Ewing MSP, gave evidence. We summarise that as follows:
Background to the Bill
The Minister explained that various reform options were considered before the present Bill was drafted. Those included: giving guidance on the exercise of judicial discretion to allow a claim to proceed though raised late; the extension of the limitation period; and even wholesale abolition of limitation. It was ultimately decided that the present Bill was the most proportionate way to proceed to meet the specific aim of improving access to justice for survivors.
On 28 February 2017, the Scottish Parliament’s Justice Committee continued its consideration of the Limitation (Childhood Abuse) (Scotland) Bill, by taking evidence from seven further witnesses. We summarise that evidence as follows:
Legal principles and the law
Representatives of the Faculty of Advocates, the Law Society of Scotland and the Scottish Human Rights Commission (SHRC) gave evidence. It was stressed by those giving evidence on behalf of the first two organisations that their membership comprised broad churches of opinion and the evidence given today should not be taken as suggesting that there is consensus amongst those bodies. That should be borne in mind when this blog refers to a view from either of those two organisations. From the claimant perspective, the Bill was welcomed by the Law Society. It was also welcomed by SHRC. A view on the Bill was not expressed on behalf of the Faculty of Advocates, with their representative advising that their position is that the Bill is here now and they are keen that it should be made as good law as it can be. We look now at specific topics covered in evidence:
- Guidance on exercise of discretion?: None of those giving evidence supported guidance being given to Judges in the exercise of their existing discretion to allow a time-barred claim to proceed, though for different reasons.
- An alternative discretion: It was acknowledged that discretion to disallow a case proceeding remained in the Bill, in the context of whether the defender could get a “fair hearing” and whether allowing a case to proceed would “substantially prejudice” a defender such as to outweigh the pursuer’s interest. It was noted, though, that the law is to be “re-booted” should the Bill become an Act since the onus would shift from the pursuer having to justify delay to the defender having to establish that a fair hearing could not be obtained or that they would be substantially prejudiced to the extent that the pursuer’s interest should be overridden.
- Injury: All those giving evidence made the point that, regardless of the way in which “abuse” is ultimately defined, a survivor would need to prove injury – physical and/or psychological – caused by the abuse to make a successful claim.
- Today’s or yesteryear’s standards?: A Committee member raised this issue in the context of consideration of chastisement. Broadly speaking, the view was that conduct should be viewed in terms of the standards of the time.
- Prior settlements: The Law Society echoed a point made by APIL at the first session that cases previously settled for “damages and costs” should be allowed to be re-raised, that off-setting should apply in those cases and that it should be for a defender to prove a prior settlement.
- Pre-26 September 1964 abuse: Prescription: All were agreed that, realistically, the law can afford no remedy to survivors who suffered abuse before 26 September 1964, on account of the Scots Law of Prescription. That point was made forcibly by SHRC in that defender’s human rights would be interfered with such that legislating in this area would be incredibly problematic and may frustrate the whole legislation.
Legal practicalities and the law
Representatives of the Convention of Scottish Local Authorities (COSLA), Police Scotland, Social Work Scotland and the Society of Local Authority Lawyers and Administrators (SOLAR) gave evidence. We summarise that here:
- Abuse: Discussion continued on the definition of abuse. “Neglect” was suggested as an addition to the proposed definition. “Psychological abuse” had earlier been suggested by the Faculty of Advocates’ representative for inclusion. It was thought that “spiritual abuse”, mentioned at the first evidence session, would be encompassed within “emotional abuse”.
- The numbers involved: The consensus was that no reliance should be placed on the figure of 2,200 survivors referred to in the Scottish Government papers. A figure of 4,400 was put forward by the Police in respect of the Strathclyde region complainants (those who had reported a crime) but again it was emphasised that nobody can predict the number who may choose to make a civil claim.
Written by Frank Hughes and Siobhan Kelly, partners