The Government's Consultation on Limitation in Child Sexual Abuse cases closes on the 10th July 2024
As we go into an election today, expecting a new government, we can only hope that the Labour administration implements practical measures that will help children who suffer abuse. ?
One of those measures is being considered in Whitehall right now. On the 15th May, the government opened up a consultation on “Limitation Law in Child Sexual Abuse Cases.” That consultation closes on the 10th July 2024. The Association of Child Abuse Lawyers (of which I am a founder member) has submitted a response to the consultation, with which I agree.
I have submitted my own response and this article looks at the debate on this difficult issue. ?
First and foremost, the government consultation has one glaring but predictable omission in its title. The abuse of children comes in many different forms and it is quite wrong to limit any change to limitation to purely sexual abuse. At least half of the cases with which I deal concern physical and emotional abuse, which can be just as devastating for a victim. Moreover, it is not just children who suffer abuse, but also adults (particularly vulnerable adults) and they too come up against limitation problems when attempting to make compensation claims.
The apparent narrowness of the consultation seems to be dictated by the fact that the Independent Inquiry into Child Sexual Abuse (“IICSA”) did not have physical and emotional abuse within its remit. ?
So - what did IICSA say about limitation? Its deliberations can be seen at:-
As for IICSA’s conclusions, which came out in October 2022, these can be seen at:-
Very briefly, the Inquiry took evidence from wide variety of parties involved in compensation claims. It recommended that the current three year time limit (which runs from a survivor’s 18th birthday) should be removed. However, a defendant should be given “the express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible.” The amendment to the current Limitation Act 1980 should apply whether or not the current three-year period had already started to run or had expired, except where claims had been dismissed by a court or settled. The new law would apply only to claims brought by survivors, not claims brought on behalf of deceased survivors.
So – in 2024, the government launched a consultation to look at the law of limitation.
The consultation accepts that nearly all historic child sexual abuse claims are brought outside the three year time limit. Whilst there is very limited scope to argue that a claimant may not “know” that they have a claim under the Limitation Act 1980, the courts have made it clear that it would be very difficult to persuade them that a person abused as a child does not know that they have suffered some injury at the time. Normally, claimants have to rely on Section 33 of the Limitation Act 1980, which sets out a checklist of non-exhaustive factors to be taken into account, chief of which (according to caselaw) is the extent to which the evidence is or is likely to be less cogent than if the claim had been brought in time. ?
IICSA recognised that a significant amount of claims for child sexual abuse were rejected on the grounds of limitation. My own experience is that this is the main ground for my not being able to take on a claim, in the vast majority of claims that come my way. Typically the fact that the abuser has been convicted in a criminal court will transform a claimant’s prospects on limitation, but it should not be thought that this is the touchstone for a successful case. There are plenty of claimants who receive compensation via schemes, group actions or individually who do not have the benefit of a successful criminal prosecution behind them. Generally speaking courts recognise – to quote from an early judicial comment on the issue – that one of the most pernicious fruits of abuse is silence.
The government’s consultation paper looks at the law in other jurisdictions. In certain states in Canada and Australia, limitation for child abuse compensation claims is removed entirely. In Scotland, the Limitation (Childhood Abuse) (Scotland) Act 2017 removes the previous three year limitation period for childhood abuse. This Act amends the Prescription and Limitation (Scotland) Act 1973 and allows survivors to bring claims for compensation against their abuser where the abuse took place after the 26th September 1964. However, if the defendant satisfies the court that it is not possible for a fair hearing to take place or that the defendant would be substantially prejudiced were the action to proceed, then the claim can be defeated.
The consultation paper then sets out the various options, which I will summarise briefly.
Option 1 is the complete removal of the limitation period in child sexual abuse cases. Unsurprisingly, the government does not support this option. It points out that Section 33 provides the court with a wide discretion to overturn limitation and moreover, a limitation period “also encourages disputes to be resolved timeously thus promoting finality and certainty.” The Association of Child Abuse Lawyers has put forward a long list of reasons why the limitation period should be removed, and I will not repeat those reasons here.
Option 2 is to reverse the burden of proof in child sexual abuse cases. This means that the court would let the action proceed unless the defendant satisfies the Court that it is not possible for a fair hearing to proceed or that the defendant would be substantially prejudiced were the action to proceed. As we saw above, in Scotland, the defendant is allowed to raise this defence. The UK government supports this option, but it appears that it still wishes to keep the limitation period of three years. At present in England and Wales, a court has the power to disapply limitation using its discretion under Section 33 of the Limitation Act 1980. One of the factors that features prominently in the caselaw is the passage of time and its effect on the evidence presented to the court. Defendants routinely raise this factor and they will present evidence to the court to show why a fair trial is impossible. In my view, reversing the burden of proof from claimant to defendant makes little or no practical difference. Consequently Option 2 is of very little value to a Claimant if the current limitation regime is retained although certainly I would not oppose anything that improved a claimant's chances of overcoming limitation.
Option 3 is to codify existing judicial guidance, which the Court should use when deciding whether or not to exercise its discretion under Section 33 of the Limitation Act 1980. The government says that a judicial code would “buttress” existing judicial discretion and increase its legal force. The writer does not agree. There is no lack of judicial caselaw on the use of Section 33 in a wide variety of abusive situations. Generally speaking, the caselaw is applied consistently by the courts. Codifying existing judicial guidance would not add anything to the balancing process under Section 33. There is also the danger that a statutory code might limit the court’s discretion. The factors listed under Section are non-exhaustive, and so courts can bring in factors specifically mentioned outside the Section 33 list. That flexibility should be maintained. As with Option 2, if judicial guidance were to be drafted in such a way that the position of the claimant was improved then I would welcome that, but undertaking such codification can be a difficult process. An example of this difficulty was the Judicial College's publication of its Sixteenth Edition in 2022, which included for the first time a category for child abuse compensation. There is now a Seventeenth Edition. The addition of this category was very welcome for survivors of abuse, but there have been criticisms of the wording used for instance the lack of guidance as to what sort of cases would attracted aggravated damages awards.
Option 4 is to allow the re-opening of claims that have already been adjudicated or settled. Again unsurprisingly, the government does not support this option. On this point, I would only say that there is a precedent. Following the Court of Appeal decision in JT v First-Tier Tribunal [2018] EWCA Civ 1735, an application to the Criminal Injuries Compensation Authority was held eligible for an award despite the fact that it fell foul of the CICA’s “same roof” rule, which prevented an applicant from making a claim prior to the 1st October 1979 where they and their abuser were living together. Following that decision, the CICA amended their Scheme to allow previous applicants to make claims. That included applicants whose claims had been refused previously under the “same roof” rule.
Option 5 is to extend the definition of abuse beyond sexual abuse. Scottish limitation law covers sexual, physical and emotional abuse, although other jurisdictions only apply the exclusion of limitation to sexual abuse. Regrettably the government believes that any reforms to the Limitation Act 1980 should be limited to child sexual abuse. Their reasoning is that IICSA has “comprehensively” explored the case for reform in relation to child sexual abuse.
This is peculiar reasoning. The government consultation makes no reference to undertaking any kind of research, apart from a cursory examination of the law in other jurisdictions.? IICSA did not consider the position of those who suffered physical and emotional abuse, because that was beyond its remit. Nonetheless, many of the cases examined by IICSA involved not only sexual abuse, but sexual abuse coupled with physical and emotional abuse, particularly those involving criminal and sexual exploitation, where blackmail and threats of violence are part and parcel of the perpetrators’ way of controlling their victims.
It is certainly true to say that the criminal courts have produced and continue to produce many high profile cases of sexual abuse, whilst cases of physical and emotional abuse are far less commonly reported. The same applies to child abuse compensation claims, which reach the civil courts.
Nonetheless, figures published by the NSPCC demonstrate that cases of non-sexual child abuse are far more prevalent. In 2021/22 the NSPCC’s Helpline contacted agencies about 22,505 children to investigate concerns about abuse and neglect. They produced the following figures.
8,389 children with concerns of neglect
6,441 children with concerns of physical abuse
4,418 children with concerns of emotional abuse
3,013 children with concerns sexual abuse
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and 244 for sexual abuse online.
The government does not really set out why child sexual abuse should be placed in a more favourable position re limitation than other types of abuse. There is also the question of what happens to mixed claims, involving all three types of abuse. Would the claimant be permitted to overcome limitation in relation to sexual abuse but not physical or emotional abuse? That would produce an absurd result.
The government does make reference to comments made during a debate in the Irish Dail, which took place in 1999. During that debate, the Irish Minister for Justice, Equality and Law Reform said that child sexual abuse specifically was a category deserving of “special rules” and that in “other forms of abuse…..the issues are not always as clear-cut as in the case of sexual abuse.”
Looking at precisely what was said, the Irish Minister said that some physical abuse of children would have been classed “until not long ago” as reasonable corporal punishment. He then said:-
“The Government's view is that it needs to obtain the advice of experts on whether and to what extent other forms of abuse are likely to have the inhibiting effect on the victim long into adult life that is known to occur in many instances of childhood sex abuse.”
The Minister then said:-?
“Research needs to be undertaken into the position in a wide range of other jurisdictions so that we can benefit from the experiences of those states which have taken a wider or a narrower approach to the issue of limitation periods for various forms of childhood abuse, understand why different approaches have been taken in different countries and apply the most appropriate reasoning gleaned from that research to whatever changes we should make in our law.”
The resultant Statute of Limitation (Amendment) Act 2000 amended the existing Irish limitation law, the Statute of Limitations 1957. However, the change in the law, which was intended to make it easier for survivors to bring a claim, only applied to sexual abuse cases. Looking at the subsequent debates in the Irish Dail, this issue of what kind of abuse would be included was still a live one as at the 15th June 2000 with Dail deputies forcefully making the point that it would be wrong to exclude non sexual abuse from the new limitation regime.?
In answer to those concerns, the Irish government said that it was awaiting a report from the Irish Law Reform Commission. In the meantime, the bill was signed into law on the 21st June 2000.
The Irish Law Reform Commission did publish a lengthy paper on limitation arising from non-sexual abuse of children in August 2000.
The Commission felt that sexual abuse and non-sexual abuse should have different limitation regimes.
The first reason given by the Commission was that in relation to physical abuse, there was a danger that a court might apply the standards of today to yesterday’s corporal punishment. No such risk existed in sexual abuse cases. Another reason was that recent statistics showed that physical abuse, neglect and emotional abuse of children was far more widespread than sexual abuse. The Commission said that the gravity and magnitude of physical and emotional abuse was far more wide ranging than with sexual abuse. Consequently, the demands of certainty, finality and clarity i.e. the need for a stricter limitation regime – should be regarded as “pressing”. ?Sexual abuse would produce certain psychological effects, such as guilt and the repression of memory which were found far less in non-sexual abuse cases. Finally there was a judicial view that the reliability of evidence in sexual abuse cases was less vulnerable to damage by the passage of time.
The reasoning above says a great deal about society's historical acceptance of the physical and emotional abuse of children. However, the Commission recommended that a special limitations regime was necessary to accommodate the particular problems of the law of limitations in cases arising from the non-sexual abuse of children, but that regime should be different from the regime that applied to sexual abuse. However, there was no subsequent amendment to the 2000 Act.
Whilst I accept that there is some force in what the Commission in Ireland said, these consultations took place nearly a quarter century ago. Since that time, in England and Wales, caselaw has changed the law of limitation in child abuse cases considerably. The courts have not sought to make a distinction between sexual and non-sexual child abuse when dealing with limitation issues. New scandals have emerged, not least the child exploitation gangs that have been prosecuted in the criminal courts, where physical and emotional abuse goes hand in hand with sexual abuse. In Scotland, we now have legislation to remove the limitation period for all types of abuse. As the UK government says in its consultation, at least one other jurisdiction (the State of Victoria in Australia) has a special limitation regime, which is not restricted to sexual abuse.?
Option 6 suggests adjusting the factors in Section 33 of the Limitation Act 1980 in relation to child sexual abuse cases. So for example, Section 33 could be adjusted so that if child sexual abuse is stated as a reason for delay in bringing a claim, the court must accept this as a valid reason without requiring the claimant to give further details to justify why child sexual abuse caused the delay. Such a measure would obviously help a claimant and is to be welcomed, but I would far prefer the Scottish option, which is to remove limitation entirely from child abuse cases. ?
Option 7 posits an extended limitation period for child sexual abuse cases. Studies have found that the average length of time for disclosure is 26 years. The problem here, as the government says is that an extended limitation period of say 25 – 30 years would give rise to “passage of time” problems with evidence as well as lack of certainty. The government does not favour this option, and neither would I.
Option 8 suggests the creation of a pre-action protocol for child sexual abuse claims. Some years ago I wrote a Pre Action Protocol for abuse claims brought by both children and adults. That Protocol was then developed with other claimant lawyers and discussed with representatives from defendant organisations. Regrettably the Civil Procedure Rule Committee did not take up the idea and no protocol currently exists for these types of claim. Nonetheless the claimant protocol is still in circulation and could be used as a starting point to hammer out a protocol. Such a protocol would make perfect sense, given the particular procedural issues that can bedevil these claims, not least the granting of a limitation moratorium to stop time ticking against a claimant and the avoidance of lengthy litigation, which can cause so much psychological damage. ????
We are likely to have a Labour government by the end of this week, and I would hope that they will adopt the approach of the Scottish parliament in enacting legislation that will make it possible for many survivors of abuse to obtain some justice. The present Shadow Secretary of State for Justice is Shabana Mahmood MP, who qualified as a barrister prior to entering politics.
However, the insurance industry and many organisations that face litigation will be pressing for an option that minimises cost. If the limitation bar is removed, then there must be more child abuse claims, which a government with a dwindling Exchequer may well decide to stem by opting for a superficial amendment to limitation law. ??
Malcolm Johnson is the head of Lime Solicitor’s Abuse Compensation Department. He can be contacted about this article on [email protected]
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Barrister at 12 King's Bench Walk
4 个月A great summary of the proposals and your views as the consultation draws to a close - it seems to me that every option other than the removal of limitation would either make no practical difference or just move the goalposts. The worry about removing limitation completely seems to be the idea that it leaves C with an open goal - but it doesn’t - Ds can still (and will) put Cs to proof and there may still be cases in which a C can’t prove aspects of their case because of the available evidence/impact of time. Removing limitation is to my mind the best solution. Not to mention the access to justice issues where a genuine meritorious C isn’t able to instruct solicitors simply because of limitation risks, which C is probably not to “blame” for. End of rant!