September 30, 2019

Child Abuse Inquiry publishes Accountability and Reparations Report

The Independent Inquiry into Child Sexual Abuse (IICSA) has produced its Accountability and Reparations Investigation Report.

The report examines the extent to which the civil justice system, criminal compensation system and support services currently provide effective accountability and reparations to victims and survivors of child sexual abuse.  In response to that examination, several recommendations have been made to improve the system.

Outcome of the investigation

Survivors, insurers, local authorities, police officers and lawyers were all part of the consultation process.  The objectives of achieving accountability and reparations in cases involving child sexual abuse can be seen through many prisms, whether "punishing offenders, holding institutions to account [and] acknowledging abuse" or apologies, explanations, compensation and redress.

The report concluded existing civil justice and criminal compensation systems and support services are not designed to fulfil these objectives, and are "frustrating, hostile and ultimately futile".

The recommendations hope to make "seeking redress a less complex and distressing process for extremely vulnerable people."

Recommendations

National register

The report proposes a national register of public liability insurance policies. It is suggested that the Association of British Insurers (ABI), the Department for Work and Pensions and the Financial Conduct Authority work together to achieve this. The register would be expected to provide details of:

  • The relevant organisation
  • The name of the insurer
  • All relevant contact details
  • The period of cover
  • The insurance limit

Similar in format to The Employers' Liability Tracing Office, this proposal would help survivors of child sexual abuse to trace the relevant public liability insurers with less difficulty. However, a register such as this will require industry wide participation and co-operation, and the practicalities of creating a register of this volume are not without issue. Not least is the fact that PL insurance has never been compulsory, so the absence of a record of insurance may only mean there was no insurance in place.

Codes of practice

It is proposed that the Local Government Association and the ABI produce respective codes of practice for responding to and handling civil claims arising out of child sexual abuse.  These codes would be expected to recognise the long-term psychiatric or psychological and emotional effects of child sexual abuse, and the practical difficulties victims have in disclosing abuse and initiating civil claims.

Signposting

The Victims' Code does not currently signpost the rights of victims and survivors to bring civil claims for compensation or the possibility of obtaining a criminal compensation order by the criminal courts.  The proposals would ensure victims would be provided with better information and signposting towards support services and eligibility for compensation.

Apologies

Institutions are often reluctant to apologise or fund treatment out of concern that such an action could be seen as an admission of vicarious liability.  It is proposed that section 2 of the Compensation Act 2006 (An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty) be amended to apply to claims involving allegations of vicarious liability arising from the actions of individual abusers.

Compensation

Amendments to the Judicial College Guidelines are proposed to include a freestanding section on the damages that may be appropriate in cases of child sexual abuse. Courts would be advised to take into account the:

  • Nature and severity of the abuse;
  • Short-term and long-term physical, emotional, psychiatric and psychological injuries; and
  • Effect of the abuse on the claimant's capacity to function throughout their life.

For criminal cases involving child sexual abuse it is proposed that there be a wider use of criminal compensation orders, which would require implementation via the Sentencing Council, the Judicial College, the Crown Prosecution Service and any other relevant bodies.

Rehabilitation code

A new rehabilitation code for claimants who are bringing claims for child sexual abuse should be produced. The objective is to ensure that victims are able to access the therapy and support they need as soon as possible.

What happens next?

Those organisations mentioned in the recommendations are expected to publish their responses, including the timetable involved for carrying out their suggested actions, within six months.

The report outlines two issues that will be considered further in the next phase of the Accountability and Reparations investigation during three days of public hearings from 26-28 November 2019:

  1. The law of limitation for non-recent child sexual abuse will be subject to discussions on reform.Insurers and uninsured bodies differ in their approach to the current limitation defence. The ABI has indicated that there may be merit in a change, but any proposed amendment will need careful review. There have been recent amendments to limitation provisions in Scotland, Australia and the US. We therefore expect that recommendations for amendments to the current law of limitation will be advanced.
  2. The potential for a redress scheme to offer accountability and reparation to victims of child sexual abuse.The nature of any redress scheme, what form it should take and who should contribute will be subject to discussion.As we have highlighted previously, different jurisdictions such as Australia and Ireland have introduced schemes, with varying levels of compensation.

From an insurer's perspective, it would be prudent to consider the implementation of those recommendations into their claims handling procedures.  For example, the proposed codes of guidance which the ABI is to draft include proposals that:

  • Claimants be treated sensitively, and offered apologies, acknowledgment and support where possible.
  • Limitation defences (notwithstanding any proposals to change the law) should only be used in exceptional circumstances.
  • Single joint experts be considered for assessment of the claimant's injuries, physical or otherwise, where appropriate.

These are actions which insurers can consider applying now – as many already do – in anticipation of future guidelines on these issues.