02 June, 2023
Well, it took slightly more than the 6 months committed to but the Government have now responded to the final report of the Independent Inquiry into Child Sexual Abuse. The responses still lack detail and clarity with regards to the specific changes and actions, particularly with regards to the issues of limitation and a potential redress scheme, which are the most relevant to those dealing with claims of historic abuse.
For details of IICSA recommendation 15 - limitation, and recommendation 19 - redress scheme read our previous articles
In brief IICSA recommended that the Government made the necessary changes to legislation in order to ensure the removal of the three-year limitation period currently in place for personal injury claims brought by victims and survivors of child sexual abuse in respect of their abuse. They also sought express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible. The Inquiries recommendation was that these provisions should apply whether or not the current three-year period has already started to run or has expired, except where claims have been already dismissed by a court or settled by agreement.
The main reasons for this recommendation was due to the wealth of evidence presented by survivors of the fact that it can take years for a person to feel able to come forward and disclose their abuse, indeed many may have psychologically sought historically to dismiss or rationlise their abuse. As such many claims are not brought until decades after the abuse itself.
Although the Government have accepted why the Inquiry made this recommendation, rather than adopting it, the matter will go out to consultation to explore options of how the existing judicial guidance on the application s33 of the Limitation Act, which allows the court to disapply the time limit. As stated in our previous blog, it is our experience that limitation arguments are used sparingly and with an element of sympathy and empathy. If a fair trial is clearly possible, these arguments are not usually pursued. The implication that limitation is used as a procedural block to fair access to justice is not, in my experience, a fair representation.
IICSA also suggested a redress scheme should be established. Although redress schemes have been set up before, they have usually been single issue. Namely due to abuse by a single abuser, or at a single location or institution. A redress scheme that seeks to cover the range of facts, locations, circumstances and range of potential abuses would be a mammoth task with a plethora of unintended consequences. The Government response recognises the challenges, complexities and lengthy timescales that other redress schemes have faced. As such this too will go out to consultation. They have committed to look at the types of redress that might be made available, the extent of any financial element, eligibility and application process and carefully consider these core elements, amongst others, before committing to a detailed design. They have therefore committed to creating one, but what it will look like, what it will cover and how it will work remains unclear.
Learn more about our Care department here