A case for care

Representing claimants in child abuse cases is difficult but rewarding, writes Jon Robins, while Dr David Robinson looks at the way solicitors and doctors can work together on the diagnosis of child sex abuse.


Ten years after the police investigation first started, Manchester council last month offered £2.25 million in compensation to 168 claimants alleging sexual and physical abuse suffered in children’s homes in the Manchester area. It is the biggest case of its kind, although the average payout is £15,000. One 44-year-old former resident dismissed his £33,000 award as ‘disgusting, pathetic’. ‘For all the years I’ve suffered since I was first abused at the age of seven, that works out at less than 20p a day for every day. [For the price of a] third of a pint of milk, every day I live with the scars of sexual, physical and mental abuse.’



More than 60 children’s homes across Greater Manchester were investigated over alleged abuse going back to 1958. The Manchester Children’s Home Abuse Group was formed in 2000 following a five-year police operation that began in April 1997. ‘The big difference between child abuse and a broken leg is that the effects of abuse never go away,’ says Peter Garsden, managing partner of Cheshire firm Abney Garsden MacDonald and vice-president of the Association of Child Abuse Lawyers (ACAL). His firm has been specialising in child abuse litigation since 1994. ‘Abuse haunts you to the grave. The trauma never goes away,’ he adds.



Mr Garsden argues that the courts have effectively imposed a financial cap on assault, referring to a 2005 case where damages of £650,000 included only £50,000 for pain and suffering, with the rest relating to loss of status and earnings. ‘To cap damages for buggery at £50,000, which is the most that has ever been awarded, is appalling,’ he adds.



Billhar Singh Uppal, of the specialist Nottingham firm Uppal Taylor, acts for abuse victims at the notorious Bryn Alyn children’s homes in Clwyd. The homes were investigated as part of the government-backed inquiry by Sir Ronald Waterhouse, which revealed abuse was rife at homes in north Wales. The legal action began in 1996 and is one of the largest multi-party actions to have been litigated, gone to trial and then appeal. The first trials against Flintshire County Council were in July 2000 and the cases relating specifically to Bryn Alyn were 12 months later, when 13 lead cases were awarded more than £300,000. That ruling went to the Court of Appeal, which again backed the claimants in 2003. ‘There then followed appeals by both parties to the Court of Appeal for reassessment of both limitation and quantum,’ says Mr Uppal. ‘Since then all the other claimants have sat patiently in the wings. It can’t have been easy, but there’s nothing that we can do.’ He represents 55 claimants.



While the substantive legal action ended more than three years ago, claims have been resisted by Bryn Alyn’s insurers. ‘They’ve always maintained that there was an exemption clause within their contract that effectively states that if abuse was carried out by directors or senior members of staff, and they are deliberate acts, then they are not liable,’ Mr Uppal says. The Court of Appeal ruled last year in favour of the insurer. The claimants are applying for legal aid to take it to the House of Lords.



Mr Uppal acted in the first cases on behalf of victims of abuse in the case of Frank Beck, who ran three children’s homes in Leicestershire and who was sentenced to five life terms in 1991 for sexual assaults against more than 100 children. The solicitor has also been involved in a number of landmark cases, such as C v Flintshire County Council in 2001, where it was held that cases involving abuse of children in care fell into a wholly different category from the psychiatric damage in other personal injury cases.



Lawyers who specialise in this area point out that victims of child abuse are, for many reasons, a distinct and demanding class of claimants. ‘They’re removed from their familial backgrounds because the state concludes that such an environment isn’t good for them,’ says Mr Uppal. ‘They’re told, either by implication or directly, that they are going to be put in a children’s home and looked after, and so they’re entitled to assume that what they’re about to receive is going to be better than what they were removed from. They find it difficult to reconcile why they’re being treated worse than they were by the family from which they had been removed.’



In many cases there is, as Mr Uppal puts it, ‘the separate issue about their own criminal offending’. He continues: ‘As a general society we tend to shun children who find themselves in the parlous position of having to go into corporate care. They’re assumed to be at least partly at fault.’



Richard Scorer, an executive officer at ACAL and a partner at the Manchester claimant firm Pannone, breaks his caseload up into two parts: the cases involving historic allegations of abuse against institutions, particularly in his case the Catholic Church; and the much more recent cases involving actions against local authorities in respect of a failure to protect children at risk of abuse or who are being abused within birth families.



‘Children are discovered being abused and then there are childcare proceedings that go to the family court,’ he says. ‘It may be at some point in the process that a concern is raised that the local authority hasn’t intervened early enough or effectively enough.’ Instructions come from the Official Solicitor because the children are in care and the local authority assumes the role of parent – this means it cannot instruct solicitors because the potential claim is against the authority.



This is a growing part of Mr Scorer’s workload, which ‘probably reflects the general trend within society that we are now more aware of child abuse,’ he says. But those cases have risen significantly as a result of the tragic death of Victoria Climbie. ‘There was a stark and clear failure to protect a child from abuse,’ he adds. ‘Since then there has been a greater awareness of the obligations upon local authorities.’



Although the big group actions have dragged on for more than a decade, Richard Scorer says that that is not always the case. He points to his own cases against Birmingham City Council, where his first big claim was a 110-claimant action that was ‘turned around and settled within three years’. He says: ‘There’s no reason why a stand-alone case should take any longer than an ordinary personal injury case because, in a sense, that’s what they are.’



Mr Garsden is disturbed by the protracted nature of the litigation. ‘In the early days the defendants could be forgiven for defending and taking these cases to court,’ he says. ‘Local authorities take a more realistic approach than their insurers because they rightly recognise that there’s a moral aspect when it comes to taking children into care, subjecting them to abuse and then when they claim compensation many years later making life as difficult as they did when they first went into care. They find that morally objectionable in a way that insurers do not.’



Mr Uppal disagrees. ‘I don’t have any particular qualms about defendants bringing defences. They’re entitled to do that.’ He also takes issue with the idea that litigation is necessarily a destructive experience for his clients, who, he argues, are very resilient. ‘If you’ve been slapped at 6am every day for most of your life and someone slaps you at 7am, then the hurt isn’t as much as compared with one day waking up and having someone slap you for the first time,’ he argues.



He reckons that the vast majority of claimants have actually been empowered by the litigation. ‘I have found that when claimants are properly dealt with, a full, hard battle can be quite cathartic,’ he says. ‘It hardens their resolve, and where they have control, in as much as the system allows them, it enables them for the first time in their lives to steer their own path.’



Nearly all of the major litigation is funded by legal aid. ‘We are the primary funder,’ says David Keegan, director of the Legal Services Commission’s special investigations unit. ‘We’re proud to have funded all the lead cases and major group actions because these people were seriously abused when they were in care.’



Mr Keegan points out that cases of abuse by a public body take the litigation ‘into a different realm of funding… this means that we do not work on a strict cost-benefit test’. But he adds that the challenge for solicitors is to ‘try and keep costs in proportion to damages’. He says that the average damages is £15,000 per claimant. Mr Keegan adds that lawyers ‘have reached the high watermark in terms of court sympathy for these cases’.



Lawyers who specialise in acting for such a vulnerable client group have to be committed, not least because the work pays so poorly. Multi-party actions on public funding are conducted on a £70 risk rate (they only recover the market rate if successful). This has major cash-flow implications for specialist firms when the cases go on for so long.



Child abuse work ‘is a bit of a calling’, says Peter Garsden. ‘If you want to make big money you wouldn’t do it,’ he says. ‘All of our team believes strongly, in a socialist with a small “s” way, that the people we deal with are some of the most vulnerable people in society who deserve the best quality of advice.’



Jon Robins is a freelance journalist





Working together on the diagnosis of child sexual abuse



Responsibility for accuracy rests as much with the instructing solicitor as the expert, says Dr David Robinson



Child sexual abuse (CSA) is any use of children for the sexual gratification of adults. The truth is that many doctors find it hard to imagine that adults use children in this way and must come to terms with an inner rejection that may exclude the diagnosis from the doctor’s list of ‘possibilities’.



Important information, including a disclosure interview with the child, will be the remit of professionals within child protection teams. What the child says is of vital importance, but while information may be gained from sensitive questioning, there may be no disclosure – with courts left to make decisions on other evidence including the results of a forensic medical examination.



A paediatric forensic examination is required whenever CSA is strongly suspected. The needs of the child are paramount and experts must evaluate harm suffered (or likely to be) as per the Children Act 1989.



Responsibility for accurate diagnosis, in my view, rests as much with the instructing solicitor as it does with the expert, and lawyers must be clear about the standards that are required. Three essential components are needed to achieve the best chance of diagnosis: an expert paediatrician with core skills (see table, below right); joint examination with a forensic medical examiner; and photo documentation to facilitate the sharing of images with other experts and obviating the need for further examinations.



But how often do lawyers insist on this standard of good practice and paediatricians adhere to it? Perhaps not often enough, but without them the diagnosis may be lost or, equally tragic, an erroneous diagnosis of CSA may be made. I have witnessed difficulties on both sides – families torn apart when challenged with a false opinion, children suffering ongoing abuse where the diagnosis is not made.



While the above standards of good practice will doubtless appeal, there are a number of difficulties to overcome that both the lawyer and the expert must address. The examination should be conducted in the local child protection suite with nurse support and making use of a magnifying camera (colposcope).



But making these arrangements is not always straightforward. These units are busy and may not welcome outside doctors examining children that were previously examined by one of their own with perhaps different conclusions – sensitivity from the expert with local staff is always appreciated, while the solicitor should speak with hospital managers and include the cost of using their facility within the cost of the case.



While the need for photo documentation cannot be overstated, achieving this requires planning. Photographs are taken during the examination with the camera on an adjustable stand with foot-operated shutter. This is easy if you are acquainted with the camera in question and its operation is faultless. But in practice the paediatrician, working in unfamiliar surroundings, may be faced with a distraught child who has been examined once by a local doctor and resists further intrusion. Parents may be equally anxious for a second opinion. In addition to performing a thorough examination, the doctor must also quickly obtain quality photographs. Support may be needed from the hospital’s photographic department and arrangements should be made in advance.



If family and staff are approached in the right way, with good planning the result is usually a contented child, appropriate joint examination and high-quality photographs. Anything short of ‘fine tuning’ by solicitor and doctors may result in the assessment being abandoned leaving the court with little evidence to draw from.



Guidance on paediatric forensic examinations in relation to possible child sexual abuse (RCPCH and Association of Forensic Physicians, 2004) details much of the above advice and could be included by solicitors in their instructions.



It is said that good doctors (and perhaps good lawyers) learn from their mistakes, while bad ones make the same mistakes with increasing confidence. In the area of CSA, mistakes will undoubtedly have occurred, but if experts adhere to good practice and solicitors are clear about the standards they require, progress will be made.



Dr David Robinson is a medical expert and consultant paediatrician at Queen’s Hospital Romford in Essex



Role of the solicitor in achieving high standards for the forensic medical examination

l Instruct a paediatrician with appropriate core skills;

l Instruct a forensic medical examiner to undertake a joint examination;

l Indicate photo documentation as a requirement;

l Request from local hospital managers the use of child protection suite and colposcope and include any costs within cost of the case;

l Request support (photographic department) or other to assist with obtaining high-quality images and include costs within cost of the case; and

l Include Royal College of Paediatrics document (2004) with instructions.



Core skills required for the paediatric forensic examination:

l Ability to communicate comfortably with child and carers;

l A sensitivity to the child’s developmental, social and emotional needs;

l An understanding of consent and confidentiality;

l The competence to conduct a general and genital examination;

l An understanding of normal genital anatomy;

l An understanding of the differential diagnosis of signs seen;

l Competence to use a colposcope and obtain photo documentation;

l Ability to accurately document findings and produce a detailed report; and