Improving access to justice for survivors of childhood abuse: but at what cost?
The three-year limitation period in child abuse claims is about to be lifted in Scotland. Whilst the new law represents a victory for campaigners – and reflects the policy aims of the Scottish government – compensators should be alive to the potential spike in claims.
Local Authorities in particular will be concerned by their potential exposure.
The Limitation (Childhood Abuse) (Scotland) Act 2017 is set to come into force on 4 October 2017, having received Royal Assent on 28 July 2017. It removes the statutory time bar for cases in which the claimant was under 18 at the time of the abuse and will apply to civil court actions where the alleged abuse occurred on or after 26 September 1964. Before that date, a different time limit applies.
The new law applies to alleged abuse of a person under the age of 18. It also – very significantly – allows abuse claims to be taken to court a second time, if the claim originally failed because of the time bar.
The new law defines ‘abuse’ broadly - as including sexual abuse, physical abuse, emotional abuse and abuse which takes the form of neglect.
There are two exceptions in the new law where the court may not allow an action to proceed:
- First, where the defender (defendant) satisfies the court that it is not possible for a fair hearing to take place. The mere passage of time (even considerable time) will not necessarily make a fair hearing impossible.
- Second, where the pursuer (claimant)’s right of action has accrued before the commencement of the new law, the court may not allow the action to proceed where the defender satisfies the court that doing so would represent substantial prejudice and the prejudice is such that the action should not proceed.
Notwithstanding the importance of improving access to justice for survivors of childhood abuse, there are a number of important questions for compensators to be alive to, including:
- What is the potential impact on the public purse?
- Will child abuse claims become an uninsurable risk?
- How will the removal of limitation affect insurers who no longer cover a local authority for risk?
- How many potential claimants will there be?
- How difficult will it be for local authorities and other prospective defendants to investigate, produce documents or locate witnesses to defend such claims?
Estimates as to the number of potential claimants vary enormously. However, whatever the precise number, the prospect of seeing an increase in claims is likely.
We are also alive to the fact that campaigners in England and Wales will be watching developments closely.