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David  Hennessy

David Hennessy

Partner

T:0141 238 0068

Redress for Survivors

Client Alerts22/09/2020

The Redress for Survivors (Historical Child Abuse in Care)(Scotland)(Bill), creates a scheme whereby financial redress is provided to survivors of historical child abuse in care in Scotland. In certain circumstances, a restricted category of next of kin will also be eligible to seek redress. The purpose of the scheme is to acknowledge and provide tangible recognition of harm as a result of historical child abuse in care settings in Scotland.

The Bill seeks to create an independent body called “Redress Scotland” to determine applications by survivors under the redress scheme. Following the Advance Payment Scheme which provided a fixed and flat rate of £10,000 to survivors aged 70 or over, or those that are terminally ill, the Redress Bill is a significant development in historic abuse claims as it has widened access to redress.

Key elements

Key elements of the bill include eligibility, level of payment, contribution and waiver.

In order to be eligible the survivor needs to show he was abused while a child and resident in a relevant care setting in Scotland. The abuse must have occurred before 1 December 2004.

Survivors can apply for a fixed rate payment of £10,000 or an individually assessed payment which will be either £20,000, £40,000 or £80,000. An individually assessed payment will involve a more detailed examination of their abuse.

The payments will come from contributions made by a list of scheme contributors including public authorities, voluntary organisations and other persons who were responsible for the care of the children at the time of the abuse.

A critical caveat of accepting the redress payment requires the survivor to sign and return a waiver agreeing to abandon any ongoing civil proceedings and to waive their right to raise such civil proceedings in the future. 

A Survivor’s Perspective

Crucially for survivors, the scheme provides accountability, justice, financial and non-financial redress such as acknowledgement, and therapeutic support. It will also involve an apology to survivors and an avenue for next of kin to seek redress, which is not provided for in the Limitation (Childhood Abuse) (Scotland) Act 2017. The redress scheme is intended to provide survivors with an alternative to civil litigation in a way that will be non-adversarial and sensitive to the needs of survivors. The waiver essentially gives applicants the choice between accepting a redress payment or to commence/continue relevant civil proceedings. If survivors opt for the redress route, it will offer an accessible and faster alternative to civil compensation claims. It will eliminate or reduce the risks and barriers which are often associated with the court process. Redress payment may be preferred as it will enable avoiding the potentially distressing nature of the adversarial court process, providing a detailed account of their abuse in court and to experts which can be a traumatic experience, difficulties gathering evidence required for litigation given the length of time since the abuse took place and potential risk of dissatisfaction with the outcome. In litigation, survivors may also be less likely to receive the acknowledgement or apology of the harm suffered. Another reason why the redress scheme may be preferred over litigation is that the redress scheme places a duty on the Scottish Ministers to pay reasonably incurred legal fees by survivors. Survivors are expected to welcome this development as it provides a degree of recognition and acknowledgement of the harm suffered.

Crucially, this is unlikely to mean an end to civil litigation. It can be anticipated that court process may still be the preferred option where the potential value or complexity of a claim merits litigation. Whilst on paper the Bill looks promising to survivors it will not come as a surprise that claimant solicitors will not take this Bill as favourably. It is foreseeable that in many cases claimant solicitors would likely advise their clients against seeking redress as the awards in litigation are unquestionably higher. However, redress payments may not be so far out of line with settlements in contentious cases and this will present an obvious challenge to claimant solicitors when advising survivors.

The Insurers’ Perspective

It is important to highlight that the scheme does not set out to establish legal liability for the consequences of the abuse, as a court would. The scheme will not make a determination on any issue of fault or negligence arising from any matter for which redress is claimed. Where survivors opt to pursue the scheme route then the administrative, financial and reputational risks of costly, lengthy and complex civil litigation will be avoided. This will be welcomed by insurers who have seen the impact of non-recent abuse claims rise significantly in recent years with the increasingly wider application of vicarious liability and the removal of limitation for historic childhood abuse claims. Whilst insurers will welcome the waiver development, there has been an initial backlash from survivors who are concerned with the idea that it could be considered “cash for silence”.

Future

In terms of what this means for the future, this is a time-limited scheme to provide financial redress to survivors of historical abuse. The scheme is open to applicants for a period of five  years. The time limit may prompt more claims as survivors are made aware of their legal rights and options or alternatively it may lead to a temporary reduction in the number of claims if a significant number of survivors elect to go down the scheme route. Looking ahead, the introduction of the scheme might lead to a reduction in Scottish historical abuse litigation in the medium term. However, there is a risk that one consequence of the scheme is that it provides a pathway to payment for weaker claims that may not have succeeded in the civil courts in any event and that it may not prevent an increased volume of litigation anticipated following the introduction of QOCS in Scotland.

For more information, please contact David Hennessy or Khadija Sarwar.