The long-awaited Independent Inquiry into Child Sexual Abuse (IICSA) report was published on 20 October. 

Kim Harrison

Kim Harrison

There were 20 recommendations; this article deals with those relating to civil redress for survivors of non-recent child sexual abuse. The three main recommendations in this area related to:

  1. limitation in civil abuse compensation claims;
  2. reforms to CICA claims; and
  3. a proposed redress scheme for survivors.

1.    Limitation

The inquiry recommended changes to the law on limitation to align England and Wales with the Scottish provision in this area, by recommending that the three-year time bar be abolished for bringing these civil claims. Specifically:

  • removal of the three-year limitation period for personal injury claims brought by victims and survivors of child sexual abuse in respect of their abuse; and
  • express protection of the right to a fair trial, with the burden falling on defendants to show a fair trial is not possible.

The inquiry states that, ‘these provisions should apply whether or not the current three-year period has already started to run or has expired, except where claims have been a) dismissed by a court; or b) settled by agreement’.

This should, according to the inquiry, only apply to claims brought by victims and survivors and not to any claims brought on behalf of their estates.

This is what lawyers and campaigners acting for victims and survivors have long campaigned for. The removal of the ‘reasons for delay’ hurdle – one of the key planks in the s.33 Limitation Act 1980 criteria – will be a huge relief to survivors of abuse who often feel the legal system effectively penalises them for the abuse they have suffered, which often has a ‘silencing effect’ and makes it extremely difficult for them to come forward sooner. The reversal of the burden of proof, passing to the defendants to show that a fair trial is no longer possible, is also welcome. The government needs to implement this recommendation as soon as possible.

2.    CICA

The report provided a critique of the ongoing flaws in the Criminal Injuries Compensation Scheme and of how its continued focus on ‘crime of violence’ is an outdated way of considering how sexual abuse often works given that much abuse, particularly online sexual abuse, occurs without physical contact. The report was also critical of the fact that the 2012 scheme does not make an award to applicants who have unspent criminal convictions for offences that resulted in certain offences or orders, thus failing to recognise that the actual sexual abuse could have been a reason for the criminal offending, for example in cases involving child sexual exploitation and grooming. Finally, the inquiry recognised that the two-year time limit for bringing a claim was too short for victims and survivors, despite the ability of the CICA to waive the time limit in ‘exceptional circumstances’.

  1. The inquiry recommended that the UK government change the CICA scheme to:
  2. include other forms of child sexual abuse, including online-facilitated sexual abuse;
  3. amend the rule on unspent convictions so that applicants with unspent convictions are not automatically excluded where offences are likely to be linked to the circumstances of their sexual abuse as a child; and
  4. increase the time limit for child sexual abuse applications for CICA compensation from two years to seven years from:
  •     the date that the offence was reported to the police; or
  •     the age of 18, where the offence was reported where the victim was a child.

They further recommended that the claims officer’s discretion to extend the time limit remains.

These all appear to be sensible suggestions that, if enacted by parliament, would make a huge difference by widening the categories of those who could successfully claim under the scheme. Again, these should be implemented without delay.

3.    Redress scheme

The inquiry also recommended a single national civil redress scheme ‘as simple and non-adversarial as possible’. This is to be welcomed but issues remain.

First, the five-year period is not a long time for the scheme to be open and could leave many survivors unable to claim in time.

Second, the amounts payable under the scheme are recommended to be ‘modest’ and lower than the current amounts awarded in civil claims. It is not clear whether legal fees will be funded by the scheme, as they have been in other schemes, for example Lambeth. If legal fees are not paid then applicants with literacy and numeracy issues, learning difficulties or mental health difficulties may struggle. The inquiry report states there should be an appeals process – but again, such processes can be complex even in the most simple of schemes and it seems optimistic to assume that most applicants could manage without legal representation.

Finally, it seems wrong that taxpayers will fund the scheme with only voluntary contributions from non-state institutions, including insurers. Such contributions should be compulsory.

In conclusion, the above proposals are largely welcome for those of us who represent victims and survivors of abuse in civil cases, but the recommendations must be implemented quickly. The redress scheme proposals also need to be revisited.

 

Kim Harrison is head of operations – abuse law and public inquiries at Slater and Gordon, Manchester

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