Royal Commission Final Report Volume 17: “Beyond the Royal Commission”

Volume 17 of the Royal Commission into Institutional Responses to Child Sexual Abuse (RC) final report describes the impact and legacy of the RC and discusses the monitoring, reporting and implementation of its recommendations. Continue reading

HIAI report anniversary

Saturday 20th January marks the first anniversary of the publication of the Historical Institutional Abuse Inquiry Report.  The report was published having been delivered to The Executive Office (formerly The Office of the First and Deputy First Ministers) as it was required to do. Continue reading

Lambeth Children’s Home Redress Scheme – a local authority Redress Scheme

On 18 December 2017, Lambeth Council (“the Council”) approved the Lambeth Children’s Home Redress Scheme (“the Scheme”) to compensate survivors of sexual, physical and psychological abuse in Lambeth Children’s Homes and Shirley Oaks Primary School (“Lambeth Institutions”)from the 1930s to the 1990s.

The Scheme will commence this month with first payments anticipated to be made in March 2018. It is estimated that there are about 3,000 claims with an expected cost of £100 million. Funding is being provided through the public loan works board. Complex claims, approximately 5-10%, will be considered outside of the Scheme costing an extra £40 million.

The Council developed the Scheme with the advice and input of specialist lawyers and has said that drafting the Scheme was a difficult task as there was no precedent to follow, the Scheme being the first of its kind in England. However the Council consider one of the advantages of the Scheme is that  action is being taken now rather than  waiting for the conclusion of IICSA’s investigation into child sexual abuse within Lambeth.

Specifics of the Scheme:

  • Duration – two years (January 2018-January 2020)
  • Administered by the Council
  • Applicants are to use the Scheme’s Application Form
  • No survivor will have to restate their experience of abuse in court, applicants will receive a formal apology from the Council and appropriate counselling services
  • The Council will provide applicants with specialist advice and assistance for housing, benefits, further education and employment
  • Average damages unknown but a maximum award of £125,000
  • Compensation payments are based on a tariff, a points based system in line with the common law. Payment should fairly reflect the severity of the abuse as well as the hurt, fear and humiliation experienced and the lifetime consequences caused by the abuse
  • Funders of the Scheme are the Council via public loans from Government
  • Foster care claims to be included within the Scheme where former residents of Lambeth Institutions were directly placed into foster care and abused by foster carers
  • Stepped “Harm’s Way Payment” linked to time spent in a Lambeth Institution to be paid to eligible applicants of up to £10,000 where they were a resident at a Lambeth Institution and lived in a harsh environment or a payment of £10,000 where they were resident at a Lambeth Specialist Unit. A harsh environment is defined as living in an environment which caused the applicant to fear or apprehend they would be subject to immediate physical abuse and mistreatment, sexual abuse, neglect or cruelty. An applicant must be able to demonstrate that the experience interfered with their ability to experience happiness and fulfilment during the qualifying period of their childhood. However where there has been sexual abuse then written evidence in support of the application will not be required and the award will be £10,000 irrespective of time spent in the Institution.
  • All applicants will receive independent legal advice of their choice paid for by the Council and have the right to appeal should they disagree with a decision made. The Council will pay applicants reasonable legal fees but cannot stop lawyers from deducting from the applicants’ compensation although the Council will encourage them not to do so.
  • Appeals to be considered by a multidisciplinary appeals panel
  • Where necessary psychiatric evidence can be obtained for an applicant and the Scheme includes provisions regarding instructions to experts
  • If an eligible applicant is deceased the Scheme allows for a personal representative to apply on behalf of the deceased’s estate for a compensation payment however Harm’s Way Payments are not permitted in this category
  • Any previous or on-going civil claims will be taken into consideration by the Council. If previous compensation payments have been made these will be considered an interim payment and considered when payments under the Scheme are calculated
  • Any previous compensation from the Criminal Injuries Compensation Authority (CICA) for the same injuries by the same perpetrator relating to the same allegations under the Scheme will be repaid by the applicant to the CICA.

The Council had hoped to develop the Scheme with the Shirley Oaks Survivors Association (SOSA) who have been vocal in drawing attention to the non-recent abuse that occurred in Lambeth. However SOSA do not endorse the final Scheme as they consider a number of the vital concerns they raised during consultation have not been adopted.

SOSA’s criticisms include:

  • Lack of vital ingredients ensuring independence – as the Scheme is run and administered by the council
  • No provision for disclosure – no obligation on the council to disclose to survivors participating in the Scheme the information or files held about them;
  • Appeal – no opportunity for oral representations.

Striking the right balance when developing a scheme is difficult as there are multiple complex factors to consider and if not adequately planned schemes could fail before they come into operation or be redundant if survivors interested in participating do not engage.

It will be interesting to see how successful Lambeth’s Scheme will be and whether lessons will continue to be learned by both public and private institutions in the future when drafting their own schemes and by those engaging with them.

Other jurisdictions have employed redress schemes post their national inquiries, as in Canada, Ireland, Jersey and Australia. These examples are likely to influence the IICSA when it makes its own recommendations for redress in the future.

MIRIAM Written by Miriam Rahamim, solicitor at BLM

The costs of false allegations

Former Eurovision song contest winner Dana is pursuing a landmark prosecution of those who gave false evidence against her brother John Brown. Mr Brown, 61, a father-of-three who works in PR and the music industry, had denied all the claims. Dana who is his older sister, 67, a former Irish presidential candidate, was also accused by the prosecution of covering up her brother’s abuse for more than three decades.

The Metropolitan Police has sent a file to the Crown Prosecution Service regarding the evidence given by the seven witnesses in 2014 when John Brown was unanimously acquitted of five counts of indecent assault against two girls under the age of 13 and 16.

During the trial, two women alleged that they had been abused at locations in Northern Ireland and England during the 1970’s. Among the flaws in the evidence given by the two women at trial was the fact that one of them was not even in the country at the time of the alleged abuse, and there was also claims of alleged abuse at a property that had not been built at the time.

It is noteworthy that the allegations were only made for the first time when Dana became embroiled in a protracted commercial dispute with others.

The police investigation took three years, Mr Brown was on bail for 773 days, the investigation involved 32 police officers across four different departments and it is estimated it cost £1.5 million of public funds.

Mr Brown had to sell his home and defending the allegations cost him and his family £200,000 and to date he has been unable to recover any of this money.

The charges being considered against the seven include attempting to pervert the course of justice and perjury.

Mr Brown said it had been a ‘horrendous experience’ for him and his family, adding that ‘both Dana and I were put on trial.’

The campaign by Dana and Mr Brown to have these prosecutions brought is supported by Sir Cliff Richard and other high profile people against whom false allegations have been made although they were not prosecuted.

If the CPS chooses to prosecute, it will be the first time witnesses in a historical sex abuse case have faced trial for making false accusations, the Sunday Times reported.

It would also increase the pressure to charge the ‘credible and true’ witness known as ‘Nick’, whose claims of a Westminster VIP paedophile ring led to the £2.5m Operation Midland inquiry which collapsed when his evidence was deemed not to be credible.

It is understood that a final decision will be made in the coming weeks.

These events have also been discussed and compared to the case of Kato Harris the teacher recently acquitted of the rape of a 16 year old schoolgirl and have raised questions as to how allegations of sexual abuse, historical and otherwise are being dealt with by the police and CPS.

There can be no doubt that those who face untrue accusations like Mr Brown face huge financial losses trying to defend themselves against such accusations, however, for many, the greatest cost is the loss of good name and reputation and the impact that has on family and personal relationships. That is often a cost that one cannot put a price on.

moohan_sharonv2 Written by Sharon Moohan, partner at BLM

Appalling, dismal and catastrophic failures

Volume 16 of the Royal Commission’s (RC) final report focuses on religious organisations. It runs to 3 books, longer than any other volume in the report, and contains 58 recommendations. 7382 survivors (48.8% of those who contacted the RC) reported abuse, in 1691 religious institutions. This was more than in connection with any other type of organisation. There were 30 case studies which, amongst other issues, revealed that many religious leaders knew about allegations of abuse but failed to take any action. The failures of religious organisations are considered to be particularly troubling as a result of the significant part religion has played in the lives of many children. Many survivors reported that as a result of the abuse they had suffered a loss of faith as well as a loss of trust.

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(1) CN (2) GN v Poole Borough Council [2017] EWCA Civ 2185

Do local authorities owe children in their area a common law duty of care to protect them from harm by third parties?

Such cases are usually termed ‘failure to intervene’ or ‘failure to remove’ and rely on common law negligence of social workers in discharging their statutory duties as a route to a claim for damages.

After twenty years of judicial scrutiny, this issue has been considered afresh by the Court of the Appeal in (1) CN (2) GN v Poole Borough Council (CA, 21 December 2017).  The court’s wide-ranging analysis overturns the previously considered common law duty of care.

These claims do not arise out of the usual parental neglect or harm in the home environment.  The claims were originally presented for the mother and two children – one with severe physical and learning difficulties – who were housed by the council.  Between 2006 and 2011 they were subjected to significant harassment and abuse by a neighbouring ‘delinquent’ family, and the most vulnerable child attempted suicide.  The family was not moved.  A 2010 report criticised the council, the housing partnership and the police.

The claims which were initially based on the Housing Act were struck out by the Master.  On appeal, the High Court judge allowed the children (CN and GN but not the mother) to pursue two re-pleaded claims against the council: (1) a claim in negligence for failure to remove the family from their housing; and (2) a claim in negligence for failure to remove them from their home, if necessary by taking them into care.  The council appealed.

The Court of Appeal unanimously decided to allow the appeal: the children’s claims cannot proceed because the council owes them no duty of care in common law of negligence.  The claims are struck out.

All three judges were critical of the decision to recast a claim about the council’s housing functions into a claim for failure to remove.  This was not only “highly artificial”, but also “utterly wrong” because the children would never have been removed from their mother’s care.

At this point the case could be considered limited to its narrow facts. However the decision is significant because it reviewed the authorities on the existence of a duty of care towards children.

The original position was set out by the House of Lords in X (Minors) v Bedfordshire CC (HL, 29 June 1995): there is no statutory duty sounding in damages in child protection cases; furthermore, for a variety of reasons (discretion, policy decision, non-justiciability, need to proceed incrementally) there is no duty of care at common law either.  A local authority cannot be found negligent for the performance of its statutory duties to protect children.

The X v Bedfordshire position has been progressively eroded, partly due to the importation of Convention rights.  For instance children already in the care of a local authority can now bring claims in negligence.  Crucially, in D v East Berkshire (CA, 31 July 2003), the Court of Appeal found that there was no longer a blanket ban on claims in negligence against local authorities in relation to “the investigation of suspected child abuse and the initiation and pursuit of care proceedings”.  Each case had to be determined in its facts.  It is this decision which has founded ‘failure to remove’ claims ever since.

In this instance, the council was able to rely on two recent cases – Mitchell v Glasgow City Council (HL, 18 February 2009) and Michael v Chief Constable to South Wales Police (SC, 28 January 2015). In both cases, the courts rejected claims for failure to protect victims from harm by third parties.

In CN etc Irwin LJ, in the leading judgment, restated that save for two exceptions the common law does not impose liability for failing to prevent harm caused by someone else.  The first exception does not apply here, as it requires control over that other person. The second exception does not apply either, as it requires an assumption of liability.  The defendant council cannot be liable in law for the actions of the ‘delinquent’ family and it succeeded in the appeal.

It is understood that the claimants’ advisers are seeking permission to appeal to the Supreme Court. We will keep you informed on further legal developments.

Dover_G-28-printrich_g-11_web Written by Garry Dover, Partner and Genevieve Rich, associate at BLM

Spiritual abuse

Spiritual abuse was the subject matter of a recent survey carried out by Dr Lisa Oakley of the National Centre for Post Qualifying Social Work at Bournemouth University. The survey found that more than 1,000 British Christians from Anglican, Baptist, Independent and Pentecostal churches reported they had experienced spiritual abuse by leaders. Respondents also said church leaders were also experiencing abuse from members of their own congregations.

The survey identified key characteristics of spiritual abuse as “coercion and control, manipulation and pressuring of individuals, control through the misuse of religious texts and scripture, and providing a ‘divine’ rationale for behaviour.”  Justin Humphreys, executive director of charity the Churches’ Child Protection Advisory Service, who co-authored the research, said priests and other leaders had to be careful about expressing the beliefs of their church to avoid alienating or upsetting others and that individuals should be free to challenge.  He noted many victims had struggled to get help because social workers and mainstream children’s and abuse charities did not understand spiritual abuse and some were unaware it existed at all.

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