Protecting children

The death of Victoria Climbi exposed failures in mechanisms to protect children.

Today, the rights of abuse victims are transformed - thanks to civil actions.

Even so, solicitors need special qualities to handle such sensitive work, reports Emma Vere-Jones

The highly publicised case of Victoria Anna Climbi is nothing less than horrific.

An eight-year-old tortured and neglected by her great aunt and her great aunt's boyfriend, Victoria finally succumbed to hypothermia in February 2000, after a year of abuse.

At the time of death, she was malnourished and had 128 wounds on her body.

While the abuse itself is harrowing, also shocking was the failure by social services to prevent it.

As a result, a public inquiry was set up to investigate 12 missed opportunities that might have saved the girl's life.

The second phase of the inquiry begins at the end of this month, and the final judgment is still some months off.

In the meantime, the child's parents, Francis and Berthe Climbi, are considering the possibility of civil action.

Their solicitor, Imran Khan, says that while it is too early to say what course of action they will take, they are 'looking at all possible options'.

Civil litigation resulting from child abuse cases is on the increase.

This, in part, results from changes to the Criminal Injuries Compensation Authority (CICA), previously the Criminal Injuries Compensation Board (CICB).

Until the mid-1990s, the CICB was supposed to award compensation on the same basis as a civil court.

'That, in the government's eyes, became too expensive,' says Richard Scorer, partner at Manchester firm Pannone & Partners.

'Michael Howard, who was the home secretary at the time, abolished the CICB and replaced it with what was a less generous scheme.

It was all dressed up as though he was cleaning up the scheme and making sure people got their money quicker, but in fact people haven't, and it's much less generous.'

The reduction in the size of payouts is dramatic.

'A victim who might have got 70,000 or 80,000 under the old scheme is suddenly getting a quarter of that amount or less,' Mr Scorer adds.

As a result, there is a greater incentive to bring a civil claim.

Increased litigation has also resulted from greater recognition of the full extent of the problem.

Police and public inquiries such as Waterhouse (the investigation of child abuse in care in north Wales) has led to the acceptance of widespread abuse in local authority and private care homes.

Consequently, case law in this area has developed significantly.

In particular, headway has been made for those bringing claims outside primary limitations periods.

The fear and confusion created by the abuse of children invariably leads to silence.

As a result, many claims are brought by the victims in adult life, often 20 or 30 years after the alleged abuse.

Therefore, lawyers have been forced to contend with the Limitation Act 1980, which states a claim can only be brought within three years of the date of abuse.

Recent developments in case law have found a way around this.

In particular, Various Claimants v Bryn Alyn Community Homes last June was significant.

'Bryn Alyn was a group of private care homes in north Wales set up and run by John Alyn, who turned out to basically be a career paedophile,' says Mr Scorer.

'He had employed other paedophiles, and basically what happened was local authorities would place children in these homes.

It was significant.'

While the cases were brought many years after the abuse had taken place, and were therefore well outside the limitation period, the judge chose to allow the claimants to bring their case out of time.

In his ruling, Judge Connell said: 'In my view, it would be manifestly unjust now to prevent those who prove their claims to the relevant standard from benefiting from those claims, because they lacked the confidence and ability to talk to others at an earlier stage about their very unhappy and embarrassing experiences.

'I conclude that this injustice far outweighs any prejudice which...

the defendants have suffered through late presentation of these claims.'

Also of significance last May was Lister and Others v Helsey Hall [2002] 1 AC 215.

'In this case, it was held that an employer is vicariously liable for sexual abuse carried out by an employee,' says Elizabeth-Anne Gumbel QC, of London chambers 199 Strand.

Mr Scorer adds: 'Previously, if a staff member had abused a child in a home you had to achieve liability by saying they knew or ought to have known that the child was being abused, which is a more difficult thing to prove.'

Malcolm Johnson, partner at London firm Steel & Shamash, says that now, if you run a care home and your employees abuse children within that care home, then you are vicariously liable.

'It doesn't matter who was on duty that night or whatever, you are liable.

That was one huge step forward,' he says.

However, there are aspects of the ruling which are currently being challenged by the defendants in Bryn Alyn.

These are just a few important decisions in a rapidly developing area of law.

As the amount of work increases, are there enough solicitors to deal with it? The issue is not so much one of quantity, but of quality, according to Mr Scorer.

'A lot of people doing it don't have the experience and don't really know what they're doing,' he says.

'There are a small number of people who have built up expertise over a long period of time.

A lot of people who are abused in care are in the criminal justice system, and so have criminal lawyers.

While they may be good at criminal law, they may be less proficient at running a compensation claim.

So, they can't always give good advice.'

To improve quality of advice, and to provide support for child abuse lawyers, the Association of Child Abuse Lawyers (ACAL) was set up in 1999 by, among others, barrister Lee Moore and solicitor Peter Garsden, a partner at Abney Garsden McDonald in Cheadle, Manchester.

'When we first founded ACAL three years ago, there was much less established case law and we were all feeling our way in the dark to some extent,' says Mr Scorer.

'We thought it would be useful to have an organisation to circulate expertise, share experiences, trying to deal with some of the problems.'

But ACAL has a host of stories about abuse victims receiving bad advice from solicitors.

'Commonly people are told their claims must wait,' says Ms Moore.

Or people are told that despite their evidence, they cannot make a claim because there are outside the limitation period.

Ms Moore continues: 'There have been cases where solicitors have said we don't want this type of client in reception because often those with a history of child abuse have become involved in drug or alcohol abuse.

'This is the kind of shaming and stigmatisation that comes from bad pieces of advice.

There are cases of uninformed lawyers saying that 14-year-olds have consented to buggery.

Talk about stigmatisation.

These lawyers are just furthering the abuse.'

And a lack of knowledge and experience in these cases is not just damaging to clients; it may also be damaging to lawyers themselves.

Lawyers may not have been trained to acknowledge feelings or the impact of trauma that such cases bring with them.

'We've had 40 cases of ritual abuse, which can involve dismemberment, cannibalism, cases of people eating children's hearts.

That can be very traumatic,' says Ms Moore.

'Yet there is a tradition among lawyers of not talking about it.

We wish to wake the profession up to this.

It does have an impact.'

Symptoms of secondary trauma include cynicism about clients, denial and dissociation.

'Often lawyers are frightened they will lose objectiveness, but they are human.

They're asking: "Can we still be objective and yet recognise our feelings?" It's okay to be detached with compassion,' she adds.

Ms Moore contends that one in five members of the population has been abused.

'Lawyers can have their own agendas.

Some may have been offenders; others might have been victims.'

Ms Moore herself falls into the latter category.

'I did my pupillage in family and criminal law, but I couldn't hack it.

So instead I worked in the emotional desert of maritime law.

Maritime let me travel and run away.

It allowed me to deny my own experiences, but eventually my past caught up with me.'

However, there are ways that lawyers can minimise the likelihood of stress from these cases.

Mr Johnson says Steel & Shamash employs two external people to take witness statements, rather than have the solicitors taking them.

It also tries to minimise contact with clients; aside from the initial visit all contact is by telephone.

While this may seem a rather cold-hearted approach, it will probably benefit the client in the long run.

After all, solicitors are there to win cases not to provide counselling.

Other firms - those that can afford it - provide counselling for their staff.

To provide advice for practitioners in this area, Mr Scorer, Mr Johnson and Ms Gumbel have recently written a book about handling such compensation claims.

Published by the Law Society, it covers all aspects of compensation claims, from the statutory framework, through funding issues, to dealing with clients.

'The book was written to sum up what has been written so far, and provides a framework for people to work from,' says Mr Johnson.

It seems the book is a necessary evil as work in this practice area will continue to increase.

'There is no political will and no social will for change, and the media don't seem to wish to discuss it,' says Ms Moore.

'I sometimes despair at the sheer numbers - both human and financial.

The cost is trillions.

We are always going to have the problem.'

l Child Abuse Compensation Claims, by Elizabeth-Anne Gumbel QC, Malcolm Johnson and Richard Scorer.

Law Society Publishing, 69.95.

Emma Vere-Jones is a freelance journalist