Nicola Hogg: Consultation on financial redress for historical abuse explained

In October 2018 the Deputy First Minister John Swinney committed to establishing a financial redress scheme for survivors of historical child abuse in care in Scotland. This will require legislation to be passed by the Scottish Parliament. The Scottish government has now launched a public consultation, the results of which will directly inform the legislation that will underpin the development of the redress scheme. It will run for 12 weeks, closing on 25 November 2019. Nicola Hogg explains the details of the consultation.

The Scottish government is seeking views on the design of a statutory financial redress scheme (FRS), its implementation and how it might be able to offer broader reparation to survivors of historical child abuse. The consultation sets out:

  • The progress made to date on financial redress including previous consultations, legislation it has introduced and its Advance Payment Scheme.
  • The purpose and principles of the Financial Redress Scheme: suggesting the Scottish government wholeheartedly accepts the need to provide acknowledgement and tangible recognition of the harm children may have suffered and guiding principles including ensuring that the scheme is accessible and its awards process robust and credible.
  • Eligibility for the FRS - defining “in-care” being an institution or body had long-term responsibility in place of the applicant’s parent, and the applicant was within an eligible residential setting e.g. boarding school, foster care; “abuse”, with two options for the FRS being the Limitation (Childhood Abuse) Scotland Act 2017 definition or the Terms of Reference for the Scottish Child Abuse Inquiry; and “historical” being that which took place prior to 1 December 2004.
  • Payment Structure, Evidence and Assessment – considers whether there should be a two-staged approach to redress where payment is simply made because of abuse in care and the second considers the experience of the abuse and impact it has had on the survivor, the kinds of evidence that may be required to confirm ‘in-care’ status and what other payments might be offered to the applicant and if they have already received compensation should this be deducted from any payment that might otherwise be due under the FRS.
  • The practical aspects of making an application. For example, the timescale and access to legal advice, and how this might be managed, who else might in absence of the survivor make a claim and should they be entitled to the same level of payment. It also importantly considers who should contribute to the FRS including residential and foster care providers, local authorities and religious bodies.
  • The administration and governance of the FRS being independent of Scottish government. A new public body accountable to Scottish ministers operating a decision making panel of three people drawn from a group of suitably qualified people appointed for this purpose and ways in which services might be brought together to administer this scheme.
  • The support offered to survivors alongside the FRS, and any apologies that should be made.

The proposals in this consultation are all important but suggest a broader approach to redress is being taken by the government than was originally anticipated (or as identified by the SHRC Action Plan on Justice for Historic Abuse of Victims of Children in Care Review Group and consultation in 2016-18).

This has untold financial implications for groups who will be expected to contribute and raises questions about how that contribution would be calculated, or compensation. Creating a new public body to independently process applications for payment at first glance seems sensible, but as a completely different scheme and approach from that taken to date in the Advance Payment Scheme, which simply offers a fixed amount of compensation to those over 70 years of age or terminally ill who can demonstrate they were ‘in-care’ and declare they suffered historic abuse is questionable on the face of what the government set out to achieve.

Ultimately, the government rightly wishes to apologise to survivors who have suffered child abuse, but finding other parties liable for part of any FRS payment will necessitate full scrutiny of claims. A panel set up to examine applications will have the challenge of determining each party’s share of liability based on the evidence provided.

Will those organisations have a right to respond to any claim, or parties a right of appeal and to where? Where cases have already been settled are those in danger of being revisited by this panel, or should they only have access to stage 1 FRC claim? Insurers may well want to consider whether liability under the FRS is something which they will cover for organisations, found liable to any extent and made to contribute to a payment.

If a payment under the FRS is made and a civil claim made are the terms of any payment or the evidence provided to the panel confidential or open to be examined further by the courts? Will any payment be deductible from a civil claim or only in so far as an organisation who is being pursued contributed? Absent of the ability to deduct any FRS payment from a civil claim it seems groups/organisations asked to contribute to financially contribute to the scheme or being found liable to contribute will be resistant to this FRS.

The consultation closes on 25 November 2019.

Nicola Hogg is accredited by the Law Society of Scotland as a specialist in child law

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