Retrospective Justice One small law reform could bring justice
to hundreds of child abuse victims By Eleanor Russell, a Senior Lecturer of Law at Glasgow Caledonian University.
www.conversation.com
I
N RECENT YEARS, institutions in the UK and elsewhere have been accused of inflicting terrible cruelty on children in their care. In Scotland, for example, the Shaw Report exposed a catalogue of historic physical, emotional and sexual abuse of children in care between 1950 and 1995. In 2004, then First Minister of Scotland, Jack McConnell, made a public apology in parliament to victims of such abuse.
The effects of such abuse are oſten devastating and long- lasting for the victims. Yet despite the fact that many perpetrators have been convicted in the criminal courts, the victims have had litle success in recovering compensation through the civil courts.
More than ten years aſter McConnell’s apology, the Scotish Government has launched a consultation that could make a huge difference to these civil actions in future. It could radically change victims’ prospects of access to justice – and ought to be followed closely south of the border, where a similar problem endures.
The simple reason why so many of these actions fail is that they are time-barred under the Prescription and Limitation (Scotland) Act 1973 as having being raised too long aſter the event. There are similar time limits on such actions in England and Wales in the Limitation Act 1980.
Time-bar rules are designed to ensure that civil proceedings are brought while the evidence is still relatively fresh – and certainly before any evidence is lost or forgoten. The general rule in both jurisdictions is that actions must be raised within three years of the injuries being sustained. It is true that where the injuries were inflicted on a child, the three-year period does not begin to run in Scotland until they reach 16 (it is 18 in England and Wales). Thus if a child in Scotland is abused from, say, the age of ten until the age of 14, the clock only starts running on the child’s 16th birthday. This would mean that any action would have to be raised before the victim reached 19 (or before they reached 21 in England and Wales).
This extension for children has oſten not been enough in practice, however. The difficulty for survivors of historic child abuse is that, not surprisingly, many remain silent for many years. Some have sought to suppress their memories, while others have feared that they would not be believed. Indeed
“I have an uneasy feeling that the legislation and the strict way the courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system.”
:Lord McEwan August 2015 15
in the English case of Ablet v Devon County Council (2000), Lord Justice Sedley said that “silence is known to be one of the most pernicious fruits of abuse”.
Victims have oſten only made allegations well into adulthood, frequently as a result of media reports, such as in the case of Jimmy Savile. They have
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