As we reported on this blog on 1 September 2016, the original remit of the Scottish Inquiry excludes non-State institutions. We mentioned, in that blog, that pressure was building for the scope of the Inquiry’s remit to be extended.
Today, in the Scottish Parliament, a Ministerial Statement has been made by way of an “Update on issues relating to the Scottish Child Abuse Inquiry”. That Statement can be considered in four parts:
The remit of the Inquiry is to be changed but not as far as some survivors had hoped for. Instead of a “state / non-state” distinction, the scope of the inquiry will now cover “in care abuse, wherever it occurred”. This means abuse perpetrated by an organisation which had assumed “legal responsibility in place of a parent”.
A Bill to abolish the three year limitation rule in childhood abuse claims has now been introduced to the Scottish Parliament.
The Bill contains some refinements from the earlier draft, restricted to abuse (sexual, physical and emotional), but not also extending to neglect. It still contains a potential defence against re-litigating claims previously disposed by the court due to limitation or in a costs only settlement. It no longer makes specific reference to Convention Rights as a defence in such re-litigating claims but does indicate that the court will not allow such re-litigating claims to proceed if satisfied by the defender that a fair hearing is not possible or if the defender would be substantially prejudiced, and if this prejudice is determined by the court to override the pursuer’s interest.
The Ministerial Statement noted “with regret, no legislative solution for pre-1964 survivors” is possible. As we mentioned in a previous blog, prescription completely extinguishes an obligation; limitation provides a defence to the enforcement of an obligation. Obligations to pay compensation for injury which happened pre-1964 prescribed in 1984, when Scots Law was changed to make such obligations only subject to limitation.
The Minister referred to the In Care Survivor Support Fund, describing that as continuing to provide “highly focused and personalised” assistance to survivors. He also committed to a formal process of consultation with survivors and other parties on the issue of redress, which consultation will be taken forward urgently.
Siobhan Kelly, partner