Indeed one Scotish judge, Lord McEwan, remarked in 2008: “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 atempts to seek a fair remedy have become mired in the legal system.”
That is a damning indictment. Another Scotish judge, Lord Clarke, observed in McE v de La Salle Brothers (2007) - a case involving alleged abuse at St Ninian’s Residential School in Stirling - that Parliament did not have in mind issues such as repressed memory when it passed the 1973 Scotish Act. He argued it was therefore not appropriate to stretch the statutory language, making clear that if a problem existed, it was for Parliament to solve it.
This helps to explain why abuse survivors have been agitating for the removal of the time-bar in relation to their claims for a number of years (see chapter six of the Shaw Report). It is impossible to avoid the conclusion that in Scotland, as well as England and Wales, the current legislation as framed and interpreted does not adequately provide for them. Both the Scotish and UK Parliaments therefore need to address this problem as a mater of urgency.
The Scotish Government has taken the first step with its consultation. The debate will hopefully also extend south of the border and culminate in legislation in both jurisdictions. While we wait for that to happen, those who have been so grievously wronged in childhood can at least hope that some positive change may finally be in sight.
Photos posed by models August 2015 17
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