9. Under the Limitation Act 1980, there are time limits – known as limitation periods – within which claimants must bring their claims. The purpose is to strike a balance between the rights of claimants to bring claims and the interests of defendants in not having to defend historic cases when, for example, it may be difficult to establish what happened due to the passage of time.
10. A decision whether to use the defence of limitation is made by the EIO. Its guiding principles state:
“Ecclesiastical acknowledges that limitation should be pleaded as a defence to a claim very sparingly in relation to sexual abuse claims. Ecclesiastical has an internal escalation procedure which requires the pleading of a limitation defence to be considered and approved before it is pleaded in any individual case.”[1]
The EIO will take a view on whether a fair trial is possible for all parties where significant time has elapsed, including whether the relevant evidence is available, once it has carried out a full investigation.[2] The EIO said that it is mindful of the particular barriers to reporting child sexual abuse, especially within the context of religious organisations, and EIO staff received training from the Lucy Faithful Foundation to improve their understanding of those issues.[3]
11. In relation to Church claims, the EIO relied upon the defence of limitation in less than 4 percent of cases (nine claims) between 2003 and 2018. Mr David Bonehill, UK claims director for the EIO, accepted that it was used by the EIO in a case which went to trial in May 2019. The EIO is currently reviewing its position on the defence of limitation and confirmed in February 2020 (to the Inquiry’s Accountability and Reparations investigation) that it had placed a moratorium on its use pending the Inquiry’s report in that investigation.[4]
12. Victims and survivors complained about the impact of the process of producing separate defence psychiatric reports as part of the defence to a legal claim.[5]
13. The EIO’s guiding principles include a commitment to appointing joint medical experts where appropriate:
“Ecclesiastical recognises that requiring claimants to undergo multiple medical evaluations may cause further distress. Ecclesiastical will always consider the appropriateness of agreeing with the claimant the instruction of a joint expert.”[6]
Mr Bonehill told us that the EIO “makes great efforts” to agree joint experts with claimant lawyers at the outset of a claim. It has agreed to the claimant’s expert in 28 of its last 30 settled cases.[7] However, there is further work to be done; for example, agreeing a list of specialists with claimant lawyers.
14. The Church of England’s policy on issuing apologies states that at the conclusion of any internal process, criminal trial or statutory investigation, the diocesan safeguarding adviser (DSA) should advise the bishop about the need for and content of an apology:
“In most situations, the diocesan bishop or archbishop … should write to the survivor, offering a full apology for what occurred, and offering to meet with the survivor to hear their concerns and answer any ongoing questions.”[8]
15. There may be practical difficulties in some cases. For example, the Church is not always given the names of complainants by the police if they have exercised their right to anonymity.[9] The point at which a civil claim is brought may be the first time that the Church learns the identity of a complainant, in order to apologise.
16. Where claimants desire an apology, it should be genuine, meaningful and personal. AN-A88, a complainant in the case of Victor Whitsey, told us that an apology where “nothing has changed” was “a candy floss apology” or “prattle without practice”.[10] As she said, “a true apology has to include things such as an acknowledgement, some affect, perhaps no defence and some reparation”. Bishop Peter Forster agreed:
“the question of when apologies are made, by whom, is … a really difficult question. In one sense you can’t apologise too often; on the other hand you have to do it in an appropriate way”.[11]
He also considered that an apology is more complicated where there are civil claims because it “intersects with … the whole issue of admission of liability”, although since 2019 the EIO’s position is that apologies would not prejudice the claim or void the insurance contract.[12]
17. In any event, an insurer such as the EIO would not make the apology, though it might “facilitate” an apology where one is requested and where the Church is prepared to apologise.[13] We were told that the EIO is working with the Church to bring forward apologies; the earlier the apology, the more value it has to the recipient.[14]
18. The Church has recognised that its approach to redress for survivors of abuse such as therapy, counselling and offers of apology is not consistent and in many cases is not enough.[15] It wishes to introduce a redress scheme, to provide financial compensation, apologies and continuing support but also “comfort to survivors for their injuries” and to attempt to “put right the wrong which they have suffered, acknowledging for some that will never be possible”.[16]
19. The National Safeguarding Steering Group (NSSG) has identified a number of propositions for consideration.
19.1. It is the duty of the Church to take reasonable steps to compensate those who have been harmed as far as possible, and this should lie where legal liability arises. A redress scheme should not disadvantage victims and survivors from accessing existing methods of compensation and support.
19.2. Redress should take account of both the harm caused and the wrong done and so should lead to both elements of restoration (financial recompense and support) and repentance (ie apology). It should be consistent and not dependent upon geographic location or governance processes.
19.3. The process of redress should not compound or repeat harm, and should be trauma-informed.
19.4. The provision of redress should not (within the confines of relevant civil law) be hindered by the structures of the Church.
19.5. Redress is part of the safeguarding and pastoral responsibilities of the Church, and sits alongside the responsibility to support the “cure of souls” in every parish.[17]
20. The Church has indicated that it wishes to include input from survivors in the design of a redress scheme, into the initiation, principles, design and governance.