25. Unless a defendant admits that the claimant was sexually abused, the onus is on the claimant to satisfy the court that it is likely (on the balance of probabilities) that the abuse took place. This is known as the burden and standard of proof and it will ordinarily be discharged by the presentation of one or more of the following types of evidence.
25.1. Criminal convictions for child sexual abuse: In civil claims, the fact that a person has been convicted by a criminal court in the United Kingdom can be used as evidence that he committed the offence.[1] The court will consider that the offender committed that offence unless he can prove that he did not.[2]
25.2. Witness evidence: The claimant will be expected to provide a written statement and give oral evidence at trial. On its own, this evidence may not be sufficient, and the claimant may also rely on the evidence of other witnesses to support his or her case. These may be people who saw the abuse, or heard about it at the time or some time later. Defendants are not obliged to call any witnesses, but if they wish to do so they may rely on evidence from alleged perpetrators or other people who may support the defendant’s defence or undermine the claimant’s case, if such evidence is available.
25.3. Documents: As in all civil claims, documentary evidence is important. However, it is rare that documents confirm that sexual abuse took place at an institution. Billhar Singh Uppal said that, in “the vast majority of cases, it isn’t recorded, although, surprisingly, at times we have seen where it is”.[3] It is necessary to look at “the whole span of records, so that one can peer through the window of the home 20/30 years after the event”.[4] However, searching and reviewing large volumes of documents is a time-consuming exercise for which the costs may not always be recoverable.
26. In cases of non-recent child sexual abuse, the evidence available to both claimants and defendants may be significantly limited. Witnesses may be dead, untraceable, or unable or unwilling to give evidence. Documents may have been lost or destroyed. In many cases, there may also have been no successful criminal prosecutions, and the only evidence of abuse is that of the claimants themselves. As the burden of proof is on the claimants, this can make it difficult or impossible for them to pursue their claims, even where their accounts are credible.
27. The Stanhope Castle claims exemplify these problems.
27.1. There were no criminal prosecutions in relation to the alleged sexual (or physical) abuse. Alistair Smith, who acted for several claimants, told us that successful prosecutions would have made a significant difference to the ability to pursue the sexual abuse claims.[5]
27.2. Almost all of the alleged perpetrators were dead or could not be found.[6]
27.3. No documentary evidence was found to support the allegations of sexual abuse.[7] This was one of the factors that Rod Luck, the Claims and Reinsurance Manager at Municipal Mutual Insurance (MMI), said led the defendant to reject the claims.[8] This position may be contrasted with an earlier tranche of non-recent claims for physical abuse, which MMI settled in part because of a 1979 government report about complaints of physical abuse made between 1974 and 1977.[9]
28. Institutional defendants are only able to deny that the abuse itself took place if they have factual evidence upon which to base such a denial, such as testimony from the alleged perpetrator. Alistair Gillespie said that a positive challenge is made by an institutional defendant in no more than 5 percent of the cases that he deals with. He acknowledged that challenging the allegations can re-traumatise claimants, but said that it is appropriate to do this when there is evidence to support it.[10]
29. Even if institutional defendants do not positively deny that the abuse took place, this does not mean that they will make a legal admission that it did. Instead, they may require claimants to prove that the abuse took place. For example, in the Bryn Alyn litigation, RSA (the defendant’s insurer) required the claimants to prove the abuse suffered,[11] even where there had been a criminal conviction of John Allen for abuse against the claimant concerned.[12] Stephen Bellingham, Technical Claims Manager in RSA’s UK Legacy unit, explained that, as RSA was disputing its liability to indemnify the defendant, it was not in a position to make any admissions in respect of the abuse and in any event such matters were outside of its direct knowledge.[13] However, claimants may find it difficult to understand such an approach, regardless of the legal basis for it. AR-A23, whose claim was based on abuse by Allen, said “this surprised me, given the number of allegations made against John Allen and the fact he was a convicted child abuser by this time”.[14]
30. It can also be distressing for claimants if defendants question the credibility of their accounts. AR-A36 told us that he was abused by Colin Dick at St Aidan’s and Keith Sutton at another institution. He gave evidence at the trial of Sutton, who was convicted. Dick was convicted of offences at St Aidan’s against other children.[15] AR-A36 brought a claim after the initial group action in St Aidan’s and St Vincent’s. In a letter, the defendant stated that the 32-year period of delay had impacted the cogency and credibility of the evidence.[16] It also identified what they saw to be inconsistencies in AR-A36’s description of the abuse and whether or not it was carried out by Sutton at the other institution or Dick at St Aidan’s.[17]
31. Stephen Bellingham made clear that the letter did not call AR-A36 a liar.[18] He pointed out that there were “fundamental” inconsistencies which involved “the time and the location and the identity of the assailant”. He said that the judicial system is required to:
“make positive evidential facts on all stages in order to attribute blame, liability and damages. So it would look to make positive assertions as to what happened, where, how and by whom, in order to establish whether the defendant is legally liable for those actions; then to look at the impact of those actions in relation to any injury that has occurred, and then to attribute damage. So it needs to make positive factual conclusions at each stage, and the judicial system, if it doesn’t feel able to do that, will not do it.”[19]
32. One of the difficulties for AR-A36 was that Sutton was convicted in relation to abuse at another institution and his claim, in part, was based on abuse perpetrated by Dick at St Aidan’s. However, as far as AR-A36 was concerned, he simply did not understand how he could be believed in the trial of Sutton and “called a liar” in the civil system.[20]
33. Claimants must satisfy the court that the abuse has injured them. In cases of child sexual abuse, this usually involves proving that the abuse occurred and that it has caused them to suffer a physical or recognisable psychiatric injury. This issue is known as causation.
34. Child sexual abuse claimants are typically assessed by two psychiatric experts, one instructed by their solicitors and one by the defendants’ solicitors. The experts then produce reports setting out their views on the psychiatric effects of the abuse, the claimants’ present psychiatric conditions, and their prognoses with or without some form of treatment (such as psychotherapy).
35. Tracey Storey warns her clients that one of the most difficult things that they will have to do during their claims is to undergo psychiatric assessment.[21] Individuals respond differently. She remembered claimants from St Leonard’s who said that they found talking to a psychiatric expert a “liberating experience that helped them make sense of what they’d been through”. However, one of her clients in another case “went into crisis” after seeing the psychiatrist.[22] She questioned whether the experiences of abuse can be encapsulated in one session with a psychiatrist and whether there could be a more sophisticated method for assessing the damage caused.[23]
36. Victims and survivors varied in their views about experts.
36.1. AR-A21, who was abused at Bryn Alyn, found it a “great help” to hear the expert instructed on his behalf say that he was significantly injured by the abuse.[24]
36.2. AR-A26, also abused at Bryn Alyn, said that the psychiatrist instructed on his behalf was “sympathetic” but the defendant’s psychiatrist was “not so nice”. The “negative” report left him “upset, distressed” and feeling “suicidal”.[25]
36.3. AR-A6, who was abused at Forde Park, said that he was sent to a psychiatrist who he had never met before and had a rushed meeting for no more than an hour. This made it impossible for him to disclose details of his abuse.[26]
37. It is also a feature of the adversarial system of civil justice that the views of claimants’ and defendants’ experts will often be in opposition. Billhar Singh Uppal said “more often than not, the other side’s expert’s opinion will be diametrically opposed. It will be all to do with something else, very little to do with the abuse”.[27] Carolyn Mackenzie, Complex Claims Director at RSA, agreed that “more often than not, there seems to be a real polarisation of view between experts”.[28] To counter this, single joint experts could be used, subject to an agreed protocol.
38. In many cases the critical issue for the experts – and for the court – will be the extent to which any psychiatric disorders were caused, not by child sexual abuse, but by other adverse life experiences in childhood or adulthood. As Alistair Gillespie said:
“it can sadly be the case that an individual can have suffered abuse in more than one establishment and the expert, or experts, face a very difficult job indeed in trying to disentangle that and understand what proportion of responsibility from a causation perspective lies with one institution or perpetrator rather than another.”[29]
39. Even with expert assistance, causation may still be a difficult issue for the court to determine. In the Bryn Alyn litigation, the trial judge recognised that most of the claimants had “been through a traumatic series of damaging experiences before being placed in the care of the defendants” so were likely to have suffered difficulties in later life in any event.[30] He concluded that “in no case have I felt that it would be doing justice to the defendants to condemn them for the whole of the psychiatric injury suffered to date by any claimant”.[31] In the same litigation, the Court of Appeal recognised the difficulties faced by judges in apportioning damage, but decided that they should adopt a principled and logical approach[32] and that a wrongdoer should only pay for the proportion of harm he has caused.[33]
40. However, several claimant solicitors made the point that the courts should also consider the fact that children went into care, even with prior adverse life experiences, expecting to be protected rather than harmed further.[34] As Billhar Singh Uppal said:
“psychological injury is not linear. So to say that the individual who had suffered, let’s say, parental bereavement prior to arriving at Bryn Alyn, may, absent any other abuse, emerge into adulthood with issues of trust, perhaps a caution to love, perhaps inability to engage with their own children … Layer on top of that, then, abuse, serious abuse that they have not experienced before, not just simply a bit more of what they had at home, and it is like throwing two pebbles in a pond. The ripples are not going to be the same on every single occasion.”[35]