Independent Inquiry into Child Sexual Abuse - the Government’s response
On 22 May 2023 the Government published its response to the Final Report of the Independent Inquiry into Child Sexual Abuse (IICSA) in which it states it accepts the need to act on 19 of the 20 recommendations.
The Final Report of IICSA was published on 20 October 2022 following a seven year investigation into the extent to which institutions across England and Wales failed in their duty of care to protect and safeguard children from sexual exploitation and abuse. The findings were shocking, revealing systemic rape, sexual assault, brutalisation and trauma over decades.
In response, the Home Secretary has made it clear that stopping child sexual abuse is everyone’s responsibility. She has made three key pledges: 1) a redress scheme and therapeutic support; 2) mandatory reporting; and 3) the establishment of a Child Protection Ministerial Group. The remaining recommendations are either already or will be subject to consultation.
The recommendations made by IICSA, along with the Government’s response to each, are set out below:
1. A single set of core data to be collated relating to child sexual abuse and child sexual exploitation
The Government says it has made significant improvement in the collection of data and is striving to continually build a better picture of the scale and nature of sexual abuse in the UK.
2. The creation of Child Protection Authorities (CPAs) for England and Wales
This was one of the Inquiry’s key recommendations which has not been adopted, despite the Government’s response accepting the need for a “stronger safeguarding system”.
The Government notes that many of the functions proposed to be dealt with by the proposed CPAs already exist within current statutory and non-statutory bodies and therefore, it will explore strengthening their roles.
As lawyers, we also had concerns as to how the role of the CPAs would be funded and work in tandem with exiting organisations.
3. A Cabinet level Minister for Children
In response to this recommendation, the report comments that the Secretary of State for Education already provides a voice at cabinet level for the safeguarding and protection of children.
4. A public awareness campaign
The Government says that it has and is driving initiatives to increase reporting of child sexual abuse, including awareness raising campaigns.
5. Prohibiting the use of pain compliance techniques on children in custody
The Government has responded separately to Charlie Taylor’s Review of the Youth Justice System in England and Wales. It states it is committed to making sure that children in custody are supported and properly cared for and will remove techniques that can be used to deliberately cause pain from the Minimising and Managing Physical Restraint syllabus. Staff are trained to use the syllabus in under-18 young offender institutions and secure training centres so that it only includes training on behaviour management and restraint.
However, as the review acknowledged, it is essential that staff are trained on every aspect of their role, including where they may need to intervene to prevent serious physical harm to a child or adult. In recognition of this, staff will continue to be trained in the safe use of pain-inducing techniques as part of an intentionally separate package of emergency interventions which are reserved for scenarios where they may need to prevent physical harm to other children.
6. Amendment to the Children Act 1989 to give parity of legal protection to children in care
The Inquiry recommended that a child in care, or someone on their behalf, could apply to the court for an order preventing the local authority from exercising their parental responsibility. This would mean that courts would be able to make a wide range of orders against a local authority.
The Government has concerns that this could have adverse effects in practice. For example, it would enable courts to have a say in local authority decisions and there may be substantial resourcing implications. The Government is also concerned that this added complexity and potential conflict in decision making could negatively affect outcomes for children. Its alternative proposals include consulting on the provision of independent advocacy, improving the role of the Independent Reviewing Officer and working with external partners to evaluate the role of Regulation 44 visits (monthly independent inspections of children’s homes).
We agree with the Government that there is existing provision that can address these concerns without requiring additional resources.
7. Registration of care staff in Children’s Homes (secure and non-secure) with a registered body with the power to enforce through fitness to practice procedures
The Government has already set out proposals to reform children’s social care in its response to the 2022 Independent Review of Children’s Social Care which includes a commitment to explore proposals for professional registration of the residential childcare workforce.
8. Registration of staff in care roles in young offender institutions and secure training centres
The Ministry of Justice has consulted with stakeholders on professional registration to young offender institutions and secure training centres and concludes that internal registration is most appropriate.
9. Greater use of the Disclosure and Barring Service barred list
10. Improvements to compliance with statutory duties to refer concerns to the Disclosure and Barring Service
11. Extending the disclosure regime to those working with children overseas
The Government will take into account the findings of the Bailey Review of the Disclosure and Barring Regime published in April 2023.
12. Pre-screening for illegal images of children by internet providers
The Government has committed to make the UK the safest place to be online and as such, it introduced the Online Safety Bill to Parliament in March 2022. This legislation will give effect to a regulatory framework requiring tech companies to remove and limit the spread of illegal content and will be accountable to an independent regulator.
13. Mandatory reporting of child sexual abuse in certain circumstances
This is perhaps the most notable of the Government’s responses. IICSA proposed a statutory duty to report, a failure of which would amount to a criminal offence.
The Government agrees with IICSA that there should be a duty to report. However, it recognises that this could have a significant impact on a wide range of sectors, some of which are already under significant strain, already in the process of reform or are less closely regulated. That is why on 22 May 2023, the Home Secretary launched a 12 week call for evidence aimed at those who work with children, work in law enforcement and those who support people affected by child sexual abuse. The results of the call for evidence will be used to help decide on how best the duty should be implemented.
As lawyers, we have concerns that the Inquiry’s proposals are too complex. For example, there is scope for vexatious or malicious reports to be made and we have concerns about the privacy and The Human Rights Act 1998 Article 8 rights of those being reported. Further, such reports will require significant financial and time resources of the police and social services who are already stretched.
Following the closure of the call for evidence, there will be a 12 week consultation period after which the Government will report again. We await that report with interest.
14. Compliance with the victim’s code
The Criminal Justice Joint Inspectorates will investigate the experiences of victims of the system.
15. The removal of the three-year limitation period for personal injury claims brought by victims of child sexual abuse
The Government recognises that it might take years, and sometimes decades for victims and survivors to disclose their trauma. However, the current three year time limit to bring a civil claim is not absolute and can be disapplied by Section 33 of the Limitation Act 1980 if the court considers it just and equitable to do so. There is also existing case law and guidance on how the court should exercise its discretion. The Government plans to publish a consultation on this topic later this year.
In our experience, limitation has become less of a barrier to these claims where the court considers it appropriate to exercise its discretion in favour of the claimant.
16. A National Guarantee of specialist therapeutic support for victims
The Government recognises the importance for child victims of high-quality, timely therapeutic support and accepts there is more to be done to ensure those who have suffered get access to the provision they need. It will elicit views on the future of therapeutic support, including possible systemic changes to provision to be considered through the consultation being undertaken on redress in response to recommendation 19 below. It is of note that these will be considered together. It will be interesting to see how this develops in a system which is already significantly stretched.
17. A Code of Practice on access to records about child sexual abuse
The Information Commissioner’s Office will review its current guidance and explore issuing additional guidance to support victims and survivors of child sexual abuse and organisations that hold their records.
18. Further changes to the Criminal Injuries Compensation Scheme
The Government has considered stakeholders’ views on eligibility rules and will consult on whether to change the definition of what amounts to a violent crime for the purposes of the scheme.
19. A tiered redress scheme
IICSA said the scheme should provide payments to eligible applications through a two tier system. The scheme should run for five years and be funded by central and local Government with voluntary contributions sought from non-state institutions including Insurers. It deferred to the Government to consider the detailed rules and funding arrangements of the scheme.
The Government’s response commits to a redress scheme following extensive engagement with stakeholders and public consultation. It is worthy to note that the Government highlights the importance of apologies from the institutions that survivors see as responsible for their abuse and that these are not always forthcoming. It has accepted the Inquiry’s recommendation to consider amending the Compensation Act 2006 to make clear that the provision on apologies extends to cases involving vicarious liability for child sexual abuse and it will consult on this issue shortly.
However, the response gives no indication as to who will be required to contribute towards the redress scheme but it seems that therapeutic support and apologies will be a prominent feature. We will need to see how the consultation develops in order to understand what the scheme might look like, how it will be funded and its eligibility requirements.
20. Age verification in relation to online services and social media platforms
The Online Safety Bill will require tech companies to do far more to protect children from being exposed to harmful content or activity using technologies such as age verification.
The Government’s response has been met with criticism from the Chair of the Inquiry and groups who support victims and survivors of child sexual abuse. They state that it is disappointing that a significant number of the cross-sector recommendations that could have led to real change have been curbed and that the Government is either narrowing them down or assuming that existing mechanisms already address the need.
We note that the Government has not committed any additional financial support towards IICSA’s recommendations and instead, highlights existing schemes and consultations that are underway. Absent the Government committing additional financial support, there is concern that already stretched public authorities will be required to fund the recommendations themselves in circumstances where they are already operating under very tight budgetary constraints. We also note that IICSA proposed that insurers may contribute towards the proposed redress scheme, but the Government’s response does not comment on that point.
We await the outcome of future consultations concerning mandatory reporting and the redress scheme with interest and will provide further updates as matters progress.