The long awaited decision in Natasha Armes (NA) v Nottinghamshire County Council [18.10.2017] UKSC was handed down today in the Supreme Court by Lord Reed.
The court rejected an argument that the local authority had a non-delegable duty of care but decided (4:1) for the claimant /appellant, Natasha Armes, that the local authority is vicariously liable for physical and sexual abuse suffered by her whilst in foster care and perpetrated by foster carers.
The Commission to inquire into child abuse in the Republic of Ireland published its report (commonly known as The Ryan Report) on the 20 May 2009.
One of the recommendations of that report was that Children First: The National Guidelines for the Protection and Welfare of Children should be uniformly and consistently implemented throughout the state in dealing with allegations of abuse. The guidelines assisted people in recognising child abuse and neglect, and in reporting reasonable concerns but it did not amount to mandatory reporting.
Following the publication of the Ryan Report, the Irish Government prepared and published a detailed Implementation Plan in July 2009.
A recent BBC investigation reveals that thousands of sexual assaults have taken place in schools in the past three years, with over one fifth of the assaults carried out by children on children in so called “peer on peer” abuse.
Almost 30,000 reports of children sexually assaulting other children have been made to the police in the last four years, that is an average 22 a day. This investigation is only the latest in a line of recent reports highlighting the increase of harmful sexual behaviour among children.
The BBC investigation, which was covered on the 5 Live Investigates Show on Sunday the 6 of September, 2017 reveals that more than 5,500 alleged sex crimes in UK schools were reported to police in the last three years. In some cases the victims and suspects were as young as five years old.
One of the most difficult challenges when responding to claims for damages consequent upon sexual abuse is trying to determine who is potentially liable for payment of claims, provision of care or other rehabilitation services.
It is clear that anyone who abuses another person will bear personal responsibility but they are often not a real target for reparations as they often have limited assets or, as in many non-recent cases, they have died or cannot be located.
The Limitation (Childhood Abuse) (Scotland) Act 2017 comes into force today.
Previously, we have highlighted the Act’s retrospective effect in allowing claims arising from childhood abuse which happened after 26 September 1964 to be litigated without any time-bar impediment.
It is also worth emphasising the Act’s prospective application. Childhood abuse, which may be happening now or at any time in the future as well as after 1964, could give rise to litigation without any time-bar hurdle for the claimant to overcome, not only now but for all time coming. That should be borne in mind in the context of record-keeping, going forward, as well as to date.
As part of its research programme the IICSA is considering abuse within the health sector. Whilst none of the current investigations focus on this sector it remains a possibility that a future investigation will do so. To shape knowledge of abuse within this sector, two days of seminars will be held on 26 and 27 September at which a variety of issues will be discussed. The seminars will be available to watch live on the Inquiry’s website and then be available for subsequent review.
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