We previously reported in March 2020 on the Independent Inquiry into Child Sexual Abuse (‘IICSA’) hearings where future potential redress schemes for compensating victims of child sexual abuse were being considered.
IICSA’s Accountability and Reparation Investigation Report considers a number of redress schemes that have been set up by organisations such as Lambeth London Borough Council, and the governments of the Irish Republic, Jersey and Australia.
Further, the report recognised the importance of a redress scheme to offer accountability and reparation to victims and survivors of child sexual abuse. IICSA is, therefore, due to report further at the end of this year and is expected to include recommendations on redress. In anticipation of this, it is helpful to set out past and current schemes which have been used and the challenges going forward.
The Jersey Redress Scheme opened to applications on 1 July 2019 and closed in August 2020. The scheme was funded by the Government of Jersey and provided redress to people who, as children, were abused or suffered harm between 9 May 1945 and 31 December 2005 while:
a. Resident in a Government of Jersey children’s home
b. In a Government of Jersey foster care placement
c. Accommodated at Les Chênes secure residential unit.
Under the scheme applicants could receive financial redress and an individual letter of apology, where the applicant wished to receive an apology. Nearly 70% of applicants requested a letter of apology.
In total, 145 applications were submitted and 139 applicants were offered settlement. The average damages payment was £9,888. The amount of payment to each applicant under the scheme was based upon the nature, severity and frequency of the abuse suffered, and any physical and psychological injuries or long-term effects. In some cases, payments were made for therapeutic or medical treatment for up to £3,000. The average legal costs paid was £892.
Republic of Ireland
The Redress Board was set up under the Residential Institutions Redress Act 2002 to make “fair and reasonable awards to persons who, as children, were abused while resident in industrial schools, reformatories and other defined institutions”. The scheme was financed with public funds and contributions from religious organisations and insurers.
To apply for redress, applicants completed an official application. Applications on behalf of persons deceased since 11 May 1999 could be made by their spouse or children. Those who could prove they were resident in a defined institution, and that they were injured consistent with the alleged abuse were given an award. This meant that every applicant needed to be psychiatrically examined, regardless of psychiatric symptoms or not. Any person not satisfied with the award could apply for its review, where a decision would be made to either uphold, increase or decrease the original award.
Official figures reported by the Residential Institutions Redress Board in 2015 recorded a total of 16,648 completed cases of which awards were made in 15,579 of those cases. The average damages payment was €62,250 (€969.8m in total). At the time of reporting, costs had been finalised in 15,345 applications in which €192,911,119 had been paid in legal costs.
The scheme was set up predominantly by the Estate of Jimmy Savile. Qualifying applicants were any alleged victim who had been abused by Savile. The application process was completion of a ‘Scheme Claim Form’ with any other evidence to provide independent corroboration of their allegations.
Awards were made on a tariff-based system with awards made from £1,500 up to £40,000. If there was more than one assault, then an uplift of 25% was applied.
There were around 200 claimants in total. There was a finite sum in the estate, estimated around £4.3m. It is understood that £1.8m from the estate was paid to 78 claimants and £2.5m was paid in legal fees, although the legal fees were affected by challenges to the scheme. Further, the BBC, the NHS and Barnardos contributed towards the payment of damages and costs.
Due to the finite sums available, civil litigation would have dissipated the available sums from the estate; therefore, the scheme provided a fairer distribution of that finite sum of money in the circumstances. However, the damages were limited by tariff and no special damages could be sought.
Medomsley Redress Scheme
Medomsley Detention Centre was a prison for young male offenders in Durham from 1961 until the late 1980s. More than 1,800 former inmates reported sexual and physical abuse by staff whilst at the prison. The scheme was set up by the Ministry of Justice and administered by Government lawyers. Applications must have been submitted by 1 January 2022, with the scheme due to close on 1 July 2022.
Initially, victims were only able to make claims directly relating to one of the seven convicted men, but now only need to prove that they were in the prison at the same time as those officers who abused them.
Awards are made on a tariff-based assessment and subject to how long the applicant was at the prison and the severity of the abuse suffered.
It is noted that the scheme accepted claims where there was only physical abuse. In civil claims, a claimant alleging physical abuse would have limited prospects of success due to the issue of limitation and the claim likely being made a number of years after the expiry of limitation. This benefitted some claimants as the scheme made awards in claims that otherwise may have not succeeded in the civil claims process.
The National Redress Scheme was set up in 2018 by the Australian Government following the recommendations made by the Royal Commission in Institutional Responses to Child Sexual Abuse.
Institutions must agree to join the National Redress Scheme so they can provide redress to people who experienced child sexual abuse in relation to their institution. All state and territory governments as well as the Commonwealth have joined the scheme. Many other non-government institutions have committed to joining the scheme, including the Catholic Church, the Anglican Church, the Uniting Church, the Salvation Army, the YMCA, and Scouts Australia.
Qualifying applicants are individuals who have experienced sexual abuse as a child before 1 July 2018 and where that institution was responsible for bringing the applicant into contact with the person who abused them. Applications cannot be made on behalf of a person who has died. The scheme is open for ten years.
Applicants can receive a redress payment, counselling and psychological services up to AUS$5,000 and a Direct Personal Response (one or more of an apology or statement of regret; opportunity to meet a senior official of the institution and/or assurances that steps have been taken to prevent abuse occurring again). This is a tariff-based redress scheme with a maximum payment of AUS$150,000.
As of February 2022, over 13,948 applications had been received and 8,839 decisions have been made, including 7,611 payments totalling over AUS$656.6m with an average redress payment of AUS$86,270.
The scheme is funded by Lambeth Council with the assistance of public loans from the Government.
Whilst new applications closed on 1 January 2022, applications received before then are still being processed. Qualifying applicants are those who were resident in a Lambeth Children’s Home or a Lambeth specialist unit for children with disabilities who were (or feared they would be) subjected to physical abuse/mistreatment, sexual abuse, neglect and/or cruelty.
In regard to awards, there are four different tariff bands with a different number of
points. The first three tariffs deal with pain, suffering and loss of amenity and the fourth tariff is designed to award additional points for loss of opportunity. In addition, there is also a Harm’s Way Payment of up to £10,000, where anyone who was placed in a Lambeth Children’s Home for six months or more and can prove they feared or apprehended abuse, neglect or cruelty is awarded £10,000, whether or not they suffered actual abuse.
All applicants are entitled to a written apology, a meeting with a senior representative of
Lambeth Council, counselling and specialist advice, support and assistance to obtain housing, welfare benefits, access to further education and suitable employment.
By July 2021, 1,887 applications had been made with more than £71.5m having been paid out of the scheme.
The scheme also allows applications where compensation for the same abuse has previously
been received and in these circumstances, any prior compensation is treated as an interim payment.
The scheme is funded by the UK Government, and administered by the Child Migrant Trust.
Payments are being made to applicants in respect of the harm done to them when they were separated from their families and sent overseas as part of the UK Government’s historic participation in child migration programmes.
Applications opened on 1 March 2019 and every child migrant alive as at 1 March 2018 (or beneficiary of a child migrant who was alive as at 1 March 2018) will be entitled to a payment of £20,000. The scheme will remain open for a period of two years.
The claimant must have been sent by a church, state, voluntary or other organisation, and not have been accompanied by an adult family member or sent to live with their birth family.
Scotland’s Redress Scheme opened for applications in December 2021. It is being delivered by Redress Scotland and the Scottish Government, and funded in part by inviting organisations involved with residential care of children in the past to financially contribute.
The scheme replaced the Advanced Payment Scheme, introduced in April 2019, which provided a flat rate of £10,000 to survivors with a terminal illness, or aged 70 or over.
To apply for the scheme, the survivor must have been abused as a child (17 years old or younger), before 1 December 2004, in a defined care setting and in Scotland.
There are two types of application that can be made:
Spouses and children of deceased survivors are able to make an application for a next of kin payment.
Applications will remain open for a period of up to five years with ministerial power to extend if required.
Church of England Pilot Redress Scheme
Following the Church of England’s appearances before IICSA in 2018 and 2019, the Church’s General Synod indicated a commitment to a more victim and survivor-centred approach in the Church’s response to the needs of all kinds of survivors of all types of church-related abuse.
As a result, it is understood that the Church is in the process of developing national proposals for redress to include financial compensation, support to survivors, an acknowledgement of wrongdoing on behalf of the Church, an apology and provision of support for rebuilding survivors’ lives.
The Church has indicated that its aim is to introduce the redress scheme in 2023, although they urge any survivors in need of urgent support to visit their Interim Support Scheme.
IICSA has indicated the importance of accountability and reparations for child sexual abuse survivors, but acknowledges this takes many forms and not one system is currently able to deliver on all of the objectives.
Whilst IICSA acknowledges the rights of individual and institutional defendants to defend themselves, it considers there is a “compelling need for claims by victims and survivors of child sexual abuse to be treated differently from other forms of personal injury litigation”, and that “claimants should be treated with sensitivity and defendants should recognise that the provision of explanations, apologies, reassurance and access to specialist therapy and support may be as important (or more important) to them than the receipt of financial compensation”.
A suitable redress scheme may be able to satisfy a number of these objectives, but there are a number of challenges and issues with redress schemes, such as defining a qualifying applicant, processes in regard to deceased abusers or those who deny or have been acquitted of criminal charges, availability of evidence, assessment of damages under the scheme, funding and administration of the scheme and the finality of redress.
All of the above will require considerable thought by institutions which are considering whether to implement a redress scheme.
For more information, please contact Patrick Williams
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