Three-year statutory limitation period to be removed for child abuse claims

The Government has now announced its intention to introduce legislation to remove the three-year statutory limitation period for child abuse claims.

Further, the Government has also confirmed that it intends to reverse the burden of proof so that the onus will be on defendants and organisations to show that it is not possible for there to be a fair trial so that a civil claim should not proceed.

This announcement followed the Government’s consultation in July 2024 that sought views on how limitation law could be reformed to allow more claimants to pursue civil claims for abuse. While the Government has indicated in intends to change the law with regards to the statutory limitation period, with one exception, it has declined to proceed with any of the remaining proposed options for reform.

In summary, the Government’s responses are as follows:

1.       Complete removal of the three-year limitation period in child sexual abuse cases

The Government now supports this and has said that the “removal of the limitation period would send a clear message of the Government`s intent that victims and survivors of child sexual abuse should not have to suffer the further injustice that responses to this consultation show a limitation period may impose”. This was one of the recommendations made by the Independent Inquiry into Child Sexual Abuse (IICSA).

However, this removal is only on the basis that safeguards remains in place and “the right of defendants to a fair trial is protected and as recommended by the IICSA, would seek to ensure that any legislative changes in this area expressly recognise the importance of a fair trial”.

2.       Reverse the burden of proof in child sexual abuse cases

The Government now supports the reversal of the burden of proof “in view of the exceptional nature of historic child sexual abuse claims”. It was stated that most respondents to the consultation supported a reversal of the burden of proof to place the onus on defendants to show that there cannot be a fair trial, contrasting with the present position, where claimants have to show that there can be a fair trial. This was another aspect of the recommendation made by IICSA.

3.       Codify existing judicial guidance

This option will not now be pursued. The Government’s position on this option had been that “there would be merit in codifying existing judicial guidance and putting it on a statutory footing”. However, the Government has now acknowledged that existing judicial guidance “remains part of the common law and courts will therefore continue to take it into account when considering claims of this nature”.

4.       Additional factors to be included in judicial guidance about section 33 of the Limitation Act 1980

The Government has declined to add additional factors to the exercise of the court’s discretion around whether to allow a claim to proceed under section 33 of the Limitation Act 1980. The Government has stated that it “is content that no additional factors should be included in judicial guidance about S33”.

5.       Allow the reopening of claims that have already been adjudicated or settled

This option will also not be pursued. The Government has previously stated that it supported IICSA’s views, noting that: “it would not be appropriate to legislate to enable claims which have already been determined to be reopened”. The Government has agreed “that certainty and finality are among the key aspects of the rule of law”.

6.       Whether the change in the law should apply to claims not yet settled or dismissed by a court

Based on “overwhelming support from respondents”, the Government now believes that “in the interests of equity… any change made to the limitation period should apply to all cases that have not yet been settled or dismissed by a court”. Accordingly, when any change in the law occurs, it will apply to all existing ongoing claims which had not at that point been settled or determined by the court.

7.       Extending the definition of abuse (beyond child sexual abuse)

Any change in the law will be limited to child sexual abuse claims only. The Government has maintained the initial view in the consultation and believes that reform should be limited to child sexual abuse claims. The reason for this is that IICSA was focused solely on the sexual abuse of children rather, which it “comprehensively explored”, rather than other forms of abuse such as physical and/or emotional abuse, which will therefore still be subject to the standard limitation periods.

8.       Adjusting the factors in Section 33 of the Limitation Act in relation to Child Sexual Abuse Cases

The Government has declined to support there being bespoke Section 33 factors of the Limitation Act 1980 for child sexual abuse. It believes that Section 33 “already offers discretion in cases concerning child sexual abuse claims” and anticipates that the removal of the three-year limitation period “means there will be less reliance or use of this part of the legislation” in any event.

9.       An extended limitation period for child sexual abuse cases

The Government has agreed that there should not be an extended limitation period for child sexual abuse claims. It was originally “not minded to set a different fixed limitation period for child sexual abuse claims” as it would introduce an equally arbitrary time limit. The Government has preferred the complete removal of a limitation period instead.

10.   A Pre-Action Protocol for child sexual abuse claims

There was strong support for a bespoke Pre-Action Protocol for child sexual abuse claims. The Government has therefore indicated that it is “sympathetic to the development of a specific Pre-Action Protocol for child sexual abuse claims” and seek the views of the Civil Procedure Rules Committee and Civil Justice Council.

Summary

The Government’s response gives effect to the two key recommendations made by IICSA concerning the law of limitation in England and Wales for child sexual abuse claims: (1) the removal of the three-year limitation period; and (2) reversal of the burden of proof.

However, the extent of the reform has been limited in scope only to those claims involving child sexual abuse. It is not proposed that the approach in England and Wales will seek to widen the categories of civil claims, which will not be subject to limitation periods for other types of abuse as seen in Scotland, such as physical and emotional abuse and neglect. The current limitation regime will remain in place. It will also not be extended to those claims previously pursued and settled or adjudicated upon by a court.

It also remains to be seen the extent to which this will have any material impact on the prevalence of civil claims for child sexual abuse in the future.  It was recognised during IICSA that many victims and survivors of child sexual abuse can understandably take several years to pursue civil claims in respect of their abuse. As a result, many civil claims for non-recent abuse have already been successfully pursued outside the statutory three-year limitation period.  Further, notwithstanding the formal burden of proof has rested with claimants, existing judicial guidance has required defendants to have an evidential burden which they must discharge in each case of establishing any prejudice as a result of the claimant’s delay and must show that any evidence adduced, or likely to be adduced, is less cogent as a result of the passage of time.  This would still be the position even if the burden was reversed.

The prospect of a bespoke pre-action protocol for child sexual abuse claims is also encouraging and should be welcomed.  Given the nature of abuse claims and often the period to which the allegations relate, the pre-action protocol for personal injury claims under which child sexual abuse claims currently sit does not adequately fit or reflect the reality of civil claims for abuse.  In principle a specific pre-action protocol for child sexual abuse claims remains the most proportionate and effective way in which to resolve issues at an early stage and minimise any potential distress to claimants caused by the inherent delays in the current civil claims process.

Whilst no timetable has been given, the precise wording of primary legislation introduced by the Government as to how these reforms are to be achieved will be key and require careful consideration to ensure that the necessary balance in fairness to both claimants and defendants remains.