In England and Wales, the Ministry of Justice is responsible for the administration of courts and tribunals, legal aid and the regulation of legal services, and civil law and justice. This includes the family justice system and claims management regulation.
The ‘Accountability and reparations’ investigation is examining whether the civil justice system works effectively for victims and survivors of child sexual abuse.
In August 2016, the Inquiry published an issues paper to seek views on how the civil justice system operates in relation to child sexual abuse.[1] The issues paper invited views on a wide range of issues including reparation, the civil claims process (in particular, legal issues and insurance), reform and support. A seminar was then held in November 2016 to discuss some of the issues raised in more detail.[2]
A key issue explored at the seminar was access to justice. The Inquiry was told that the number of solicitors with expertise and experience of handling child sexual abuse claims is limited. It was also raised that some solicitors would not take on claims funded through legal aid due to the administrative complexity involved.
The Limitation Act 1980 was identified as an obstacle to accessing justice as some victims and survivors of child sexual abuse are prevented from making a civil claim because too much time has elapsed since the abuse took place. This is an important issue that the Inquiry will consider further, particularly as other jurisdictions, including Scotland, have legislated to exclude limitation considerations from child sexual abuse claims.[3]
The Inquiry was also told that there are issues with identifying defendants and establishing whether they have the funds available to make a successful claim. Seminar participants from the insurance industry explained that there are difficulties in establishing whether policies are in place and what they were at the time of the abuse. They also explained that the costs involved in investigating these issues can be a barrier to progressing a claim.
When a victim and survivor brings a claim against an institution as they suffered child sexual abuse on the institution's premises or were sexually abused by an employee or representative, the institution should be covered by public liability insurance. The Inquiry is interested in the potential of a register of public liability insurers to assist potential claimants in child sexual abuse cases locate the information they need to bring a claim.
The Chair and Panel recommend that the Association of British Insurers (ABI) considers whether a register of public liability insurers could be introduced to assist claimants in child sexual abuse cases in locating the insurers relevant to their claim, and how it would operate.
The Chair and Panel recommend that the ABI sets out its consideration of the issue and the conclusions it has reached in a written update within 12 months of the publication of this report.
The Inquiry has also consistently heard that the civil litigation system is inherently adversarial. Victims and survivors are being asked to provide evidence on the abuse they suffered in an often challenging setting ‒ for example, they can be cross-examined by an unrepresented perpetrator. This is in contrast to a criminal court, where the Youth Justice and Criminal Evidence Act 1999 sets out a range of measures designed to help vulnerable witnesses provide their evidence in court (such as providing pre-recorded evidence).
There is no equivalent legislation in relation to civil courts and the Inquiry considers that victims and survivors of child sexual abuse in civil courts deserve the same protections. As a result, the Inquiry recommend that this is addressed.
The Chair and Panel recommend that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.
The Chair and Panel understand that cost is already a barrier to victims and survivors considering a civil claim. In considering how to fund the implementation of this recommendation, the Ministry of Justice must ensure that this barrier is not further increased.
The Chair and Panel recommend that the Civil Procedure Rule Committee amends the Civil Procedure Rules to ensure that judges presiding over cases relating to child sexual abuse consider the use of protections for vulnerable witnesses.
During the course of 2018, the ‘Accountability and reparations’ investigation will continue to examine the effectiveness of the civil justice system. It will also consider the removal of the statutory limitation periods that currently prevent victims and survivors from pursuing claims related to non-recent child sexual abuse.