86. It is for the government to consider the detailed rules of, and funding for, a national redress scheme. The Inquiry has reviewed a range of evidence, particularly in the Accountability and Reparations investigation, and analysed comparable schemes.[1] It considers that key components for a national redress scheme include:
87. These core elements are informed by the scheme’s overarching purpose, which is to address the failures of the past through the provision of recognition and reparation to victims and survivors of child sexual abuse. They are also underpinned by the need for the scheme to be as simple and non-adversarial as possible.
88. It is important that the government consult victims and survivors of child sexual abuse on the detail and proposals for the implementation of the redress scheme. Such consultation should include direct engagement and meetings.
89. The redress scheme should be for victims and survivors of child sexual abuse and exploitation that occurred in England and Wales. Victims and survivors of child sexual abuse should be able to seek redress through the scheme whether the abuse was perpetrated by adults or other children. However, the Inquiry also recognises that sexual activity between children below the legal age of consent may be consensual or non-abusive. The Inquiry does not consider that such consensual though unlawful behaviour should fall within the scope of the scheme, provided the scheme is satisfied that the sexual activity is not abusive, coercive or exploitative.
90. The Inquiry’s work revealed that child sexual abuse and exploitation are often accompanied by other forms of abuse, such as physical abuse, emotional abuse and neglect, each of which can have similarly devastating impacts on victims and survivors. The government may wish to consider extending the scope of this redress scheme to include other forms of abuse in childhood as these are frequently interlinked.
91. The national redress scheme should be open to applicants who have experienced child sexual abuse or exploitation connected to an institution in England and Wales, whether State or non-State.
92. There should be a clear connection between the institution and the sexual abuse experienced by the individual. This does not mean that the scheme should be limited to sexual abuse that has taken place on an institution’s premises. Sometimes it will be easy to identify the connection. There will be other circumstances where it may be less obvious. The Inquiry does not seek to define these circumstances, but considers that there are a number of potential indicators, including but not limited to:
93. All children placed by the State, for example in private or voluntary care homes, should fall within the scheme. It should also include children placed into foster care. This will include placements arranged by the State using either their own foster care scheme or a private or voluntary foster care agency. However, it should not include other arrangements, including private arrangements not otherwise sanctioned or approved by an institution.
94. The scheme should not be limited to abuse that took place after a certain date. As one claimant representative put it, this would be “imposing another form of limitation by the back door”.[2] It is particularly important that those who have not been able to bring civil claims due to the operation of limitation, or apply to the CICA because the injury was sustained prior to 1 August 1964, are able to apply to the scheme.[3]
95. The question of whether the scheme should be limited to child sexual abuse that took place before a certain date is less easy to answer. A number of claimant representatives were of the view that because child sexual abuse will remain a problem for the foreseeable future, any scheme should not be limited in duration.[4]
96. It is unlikely that child sexual abuse will ever be completely eradicated. However, the Inquiry has made a number of recommendations to improve the protection of children as well as the existing systems of redress. The purpose of the national redress scheme is to acknowledge the failures of the past and provide reparation to victims and survivors of child sexual abuse. The Inquiry therefore recommends that the scheme should be limited in duration and be restricted to child sexual abuse that took place prior to the establishment of the scheme.
97. The redress scheme should not allow an applicant to receive money twice for the same matter.
98. There are two main ways in which a redress scheme could prevent double recovery. First, it could exclude applicants who have previously received a payment for the abuse that forms the basis of any application under the scheme. The Inquiry does not consider this to be a fair option, given that levels of awards previously received through existing systems may be low. Second, it could reduce payments under the scheme to reflect any payments or awards previously received. This is the fairer solution. It is also the approach adopted in Northern Ireland and Scotland.[5] In the case of awards made by the CICA, the scheme could alternatively order that any payments be repaid rather than deducted, as with the Lambeth redress scheme.[6]
99. As with a number of other schemes, applicants who have previously brought civil claims which have been rejected by the court should be excluded from applying to the scheme, save where their cases have been rejected due to the operation of the law of limitation.[7] It is not generally appropriate for a scheme to assess claims which have previously been adjudicated on by the courts. However, an exception should be made for such applicants given that the law of limitation has unfairly operated as a barrier to victims and survivors of child sexual abuse bringing civil claims.
100. Some schemes have placed limits on eligibility based on previous criminal convictions.[8] The Inquiry’s view is that where there is likely to be a connection between the criminal offence and the child sexual abuse, the conviction should not be a bar to receiving an award.
101. Some schemes may also allow relatives (or other representatives) of deceased victims and survivors of child sexual abuse to apply.[9] The Inquiry acknowledges that in certain special circumstances it may be appropriate for relatives (or other representatives) to apply.
102. Redress schemes usually determine the level of awards to applicants using fixed tariffs or payment bands. Some schemes focus on the nature and severity of the abuse. Others also consider the long-term impact of the abuse, including any psychiatric or psychological effects, and loss of opportunities this may have caused, for example to receive a good education or obtain employment.
103. Examples of approaches followed by other schemes include:
104. There is no perfect system for calculating awards. The simpler the system – for example, a basic tariff system focussing solely on the abuse – the easier it will be to operate, but the more likely it is that it will be criticised for rigidity and failing to differentiate between applicants and their experiences. Conversely, the more complex the system, particularly the extent to which it seeks to make payments for the long-term effects of abuse, the higher and more attractive the awards will be, but the more legalistic (that is, similar to the civil justice system) the scheme will become.
105. The national scheme needs to maintain simplicity but also differentiate between applicants and their experiences and take into account their varying needs. The Inquiry recommends that the national redress scheme in England and Wales should comprise a two-tier system, based on a fixed flat-rate recognition payment with the option to apply for a second-tier payment. The first-tier fixed-rate payment will be available to victims and survivors who meet the eligibility requirements of the scheme and the payment will reflect that they do not want to recount in detail the sexual abuse experienced. The second-tier payment will be available to eligible applicants who wish to provide more details and evidence (including of a medical nature where necessary), with assistance if required. This will provide a greater degree of flexibility and choice for victims and survivors. It will also be more straightforward to operate.
106. A number of claimant and defendant representatives suggested that the payments should be no less, or not significantly less, than damages available in civil claims.[16] The Inquiry considers, however, that payments made by the scheme should be sufficient to recognise the experiences of victims and survivors, but may not be as high as the awards available in civil claims, for two reasons:
107. For these reasons, the Inquiry considers that the first-tier payment in particular would be set at a modest level. Consultation with victims and survivors should include their views on payments and the factors to be considered when assessing the second-tier payment – for example, the nature of the abuse, the age of the victim at the time, the duration of the abuse and its impact.
108. Consideration will need to be given as to how to prevent any double recovery.
109. Victims and survivors receiving an award under the scheme should not be expected to waive any right to bring subsequent civil proceedings and it is therefore important that this option remains open for applicants, even where they have received an award under the scheme.
110. The application process must be accessible, straightforward and sensitive to the needs and vulnerabilities of victims and survivors of child sexual abuse. It should not be adversarial. Applications should normally be in writing. In exceptional circumstances, oral evidence may be required. Those assessing applications must have the appropriate knowledge, training, experience and empathy.
111. The process should provide for streamlined checks and verification of applications. Applicants to the scheme will need to demonstrate that, on the balance of probabilities, they have experienced child sexual abuse connected to an institution. However, they should not be required to repeat previous accounts of abuse unnecessarily. Applicants applying for second-tier payments should ordinarily provide a more detailed account of the abuse and its impact. They may also need to provide medical evidence, for example from their GP, although new medical assessments should only take place where strictly necessary.
112. Criminal convictions related to the abuse or admissions of responsibility by institutions will reduce or negate the need for other evidence. Where there has not been a criminal conviction, the scheme should obtain other forms of evidence necessary to determine the applications, either from the applicants or from other organisations, for example social care and medical records.
113. Some victims and survivors may struggle to complete the application process without assistance. Applicants may have disabilities or vulnerabilities that need to be accommodated. Support and assistance should be supplied by the scheme, through the provision of advice and trained caseworkers as well as, where necessary, legal assistance.
114. A review process should be in place to ensure fairness to those applicants who want their cases to be reconsidered.
115. The Inquiry recognises that it will take some time to set up a national redress scheme. Special provisions will be required, therefore, to provide accelerated awards to elderly or terminally ill applicants who would otherwise not benefit from the scheme.
116. The national redress scheme should be restricted to child sexual abuse that took place prior to the scheme’s establishment.
117. It follows therefore that the scheme should be limited in duration. The Inquiry considers that the scheme should be open for a period of five years, which will allow sufficient time for eligible individuals to apply and for the applications to be processed.
118. National redress schemes can be funded solely by the government or by the government with financial contributions from perpetrators and institutions (and their insurers). Contributions may be compulsory or voluntary. Voluntary contributions may be encouraged by way of incentives or penalties.
119. Other schemes have taken a variety of approaches:
120. The Inquiry recommends that the national redress scheme in England and Wales should be funded by central and local government, in accordance with devolved funding principles, with voluntary contributions sought from non-State institutions. This will provide acknowledgement of the overarching failure of the State to adequately protect children from sexual abuse. Additionally, it will ensure that the scheme is securely and adequately funded throughout its duration, so that successful applicants receive awards whether or not a contribution is made by the relevant institution.
121. It is important that non-State institutions contribute to the scheme, giving them the opportunity to demonstrate their commitment to supporting victims and survivors, many of whom will have been abused in institutional settings. It will also provide a sense of ‘justice’ that some victims and survivors require.
122. The Inquiry considered whether compulsory contributions could be sought from insurers, for example by way of a global ‘levy’ on insurers who provide cover for particular institutions or a case-by-case recoupment process. However, many cases of child sexual abuse do not involve an insured perpetrator or institution, and even where they do, there are complex contractual and regulatory obligations which (while not necessarily insurmountable) would have to be accommodated. Some defendant representatives and insurers made the point that a demonstrable legal liability is usually required to trigger an insurer’s obligation to pay.[29] However, the Inquiry considers that this should not prevent insurers from making voluntary contributions.[30]
123. Taking these considerations into account, the Inquiry recommends that the scheme should be State-funded but that the State should encourage non-State institutions and their insurers (if any) to contribute voluntarily.
124. There is an expectation that institutions responsible for the well-being or welfare of children which failed to protect them from sexual abuse contribute to the funding of the scheme, unless they have already (or intend to) set up their own redress schemes. The government should maintain a list of institutions from which they seek contributions, and publish a list of those which contribute. Where institutions do not respond or their contributions are considered insufficient, further action may be considered, such as publication of a list of institutions which refrain from contributing or from contributing sufficiently.