How will the Crime & Policing Act 2026 impact civil claims for child sexual abuse

IICSA’s final report was published in October 2022 and contained twenty recommendations. One of those recommendations was that the law relating to limitation in claims for child sexual abuse should be abolished and that those claims should only be time-barred if the defendant could show that a fair trial was impossible.

In late January 2025 Professor Alexis Jay, the chair of the IICSA panel, gave evidence to the Home Affairs select committee. Professor Jay launched a withering attack on the previous government for its ‘inconsequential and insubstantial response’ to the report’s recommendations. Although Professor Jay referred to what she regarded as three priorities, (mandatory reporting of child sexual exploitation; a government-backed redress scheme; and the creation of a child protection authority), she was highly critical of the overall lack of progress.

A public consultation on proposed changes to the limitation legislation took place as long ago as May/June 2024, and although there will inevitably have been a pause in government activity in the wake of the general election in July 2024, there is no doubt that Professor Jay’s criticism was a wake-up call that the Ministry of Justice has heeded.

Legislative changes

Section 96 of the Act amends the Limitation Act 1980 by inserting two new provisions, sections 11ZA and 11ZB. The insertion of these sections brings into force the recommendation of the Independent Inquiry into Child Sexual Abuse (IICSA) that:

• The three-year time limit for bringing civil claims for child sexual abuse should be abolished;

• A civil claim for child sexual abuse can proceed unless a fair trial is impossible; and

• The burden is on the defendant to show that a fair trial is no longer possible.

Section 11ZA disapplies the usual three-year time limit for personal injury claims where the claim arises from child sexual abuse. This means that a claimant is not automatically statute-barred merely because their claim is brought many years after the abuse. Evidence produced at IICSA showed that the average delay in bringing a claim for child sexual abuse is 26 years.

Section 11ZA is the safeguard for the defendant. Even though there is no fixed limitation deadline, the court must still consider whether a fair trial is possible. The burden is effectively shifted: instead of the claimant having to persuade the court to disapply the previous 3-year time bar, the claim will proceed unless the defendant shows that a fair hearing is impossible, or that allowing the action to proceed would cause substantial prejudice and would not be equitable.

Practical consequences

Previously, a claimant who suffered child sexual abuse had three years after their 18th birthday in which to bring their claim. If they did not issue their claim within that period then they could only continue with their claim if they could persuade the court to disapply the limitation period (applying the very wide discretion afforded to the court by section 33 of the 1980 Limitation Act) because it was fair, just and equitable to do so. Now, there is no fixed limitation period. The default position is that a claimant can proceed irrespective of how long it has taken them to come forward.

This change in the legislation has the effect of shifting the limitation burden to the defendant. In order to defeat a claim on limitation grounds, the defendant must show that either:

• A fair hearing is impossible; or

• Allowing the action to proceed would cause substantial prejudice and would not be equitable.

It is important to note that the legislation has retrospective effect. Claims can be brought, irrespective of the lapse of time since index events occurred, unless they have already been settled or finally determined. This means that claims which had previously been intimated but then withdrawn can potentially be pursued.

Forbes Comment:

In theory, any claim that has not been settled, or decided by a court, can be intimated again. It is reasonable to assume that claimant firms will be trawling their records and contacting clients whose claims had been withdrawn.

However, there are several reasons why there may not be an avalanche of claims:

• Many of those previous claims were for physical abuse. Those claims will not have the benefit of the new provisions, which are limited to sexual abuse allegations.

• Many of those claims had included allegations against individuals who are now deceased and may have passed away many years ago, even before the claim had previously been intimated.

• The cogency of the evidence in those cases will inevitably have deteriorated further in the years since a claim had been first intimated.

• Sadly, many of those who intimated claims will have passed away or suffered serious health issues that prevent them from going ahead. Others may understandably have no wish to re-open claims and re-awaken memories of what had happened to them.

• Many of those cases would not have succeeded due to reasons other than limitation. For example, if a claimant did not have sufficiently strong evidence to prove negligence or vicarious liability in a claim against an organisation then limitation may have been irrelevant.

• Many claims that had involved sexual abuse had been settled, even though a limitation defence may have been available, because pragmatic defendants realised that a limitation defence would fail. To that extent, the way in which defendants respond to these claims on limitation issues may not be markedly different to their approach over the last 20 years.

• The first limitation defence available to the defendants is to argue that a fair trial is impossible. There is a settled and mature body of case law of limitation decisions in child sexual abuse litigation. In reality, in those cases the courts have already applied the test of whether the effect of the delay in bringing the claim has made a fair trial impossible. Although impossibility was not the formal legal test, it is arguable that in many of those cases that was the test which was applied. It follows that any test cases that may be run using the new legislation may well involve similar reasoning. That has certainly been the approach in the Scottish courts, which adopted a similar legal test following legislative changes that came into force in 2019. Only in the most exceptional and extreme cases has a Scottish court time-barred a claim. The courts in England & Wales have been slightly less generous to claimants in decided cases, and Scottish judgments are not binding on English judges, but there are not many cases decided in favour of defendants in which limitation has been the prime or sole issue. 

• The second potential defence set out in section 11ZB, which is ‘whether allowing the action to proceed would cause substantial prejudice and would not be equitable’, almost certainly adds nothing to the defendant’s arguments. This is because on the question of substantial prejudice the court also has to consider the prejudice to the claimant in not being allowed to bring their claim. It is difficult to see how any prejudice suffered by the defendant could trump the prejudice to the claimant if the claim was barred. Again, although this provision also applies in Scotland it has yet to be upheld in favour of a defendant and it seems increasingly unlikely that it ever will be

It is very likely that there will be some satellite litigation, but it will not be of the scale and frequency that we saw in the 2008-2017 period. Further, whether any judgments will really change the status quo is debatable due to the fact that so many insurers had already taken the decision many years ago to raise limitation as an issue only in the most exceptional cases which, in all probability, would still fail despite the more generous test which is now applicable under the new legislation.