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Removal of the 3 Year Limitation Period from Civil Actions for Damages for Personal Injury for In Care Survivors of Historical Child Abuse - Analysis of Consultation Responses

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2. Introduction

2.1 On 28 May 2015 the Cabinet Secretary for Education and Lifelong Learning addressed the Parliament on the National Inquiry into Historical Child Abuse[1]. In her announcement, the Cabinet Secretary set out a package of measures to support survivors of historical abuse including:

  • The Terms of Reference of the Inquiry;
  • The Chair of the Inquiry;
  • and An update on a survivor support fund.

2.2 The Cabinet Secretary also advised of the action that the Scottish Government is taking in response to the Scottish Human Rights Commission (SHRC) recommendation on the time-bar, presented within the Action Plan developed to implement the recommendations in the SHRC Human Rights Framework. On the civil justice system, the SHRC recommended that, "The civil justice system should be increasingly accessible, adapted and appropriate for survivors of historic abuse of children in care, including through the review of the way in which "time-bar" operates".

2.3 Acknowledging that delivering the right to reparation called for by survivors through the SHRC interaction process would involve removing the time-bar, which requires a civil case for damages to be brought to court within the 3 year limitation period, the Cabinet Secretary announced that the Scottish Government intends to lift the 3 year time-bar on civil actions in cases of historical childhood abuse that took place after 26 September 1964.

2.4 Ministers hold the view that victims of child abuse should not have to demonstrate to the court that they have a right to raise litigation before the case can proceed. They consider that the circumstances of survivors of historical abuse, in particular, the class of pursuer, the type of injury and the impact on the victim are such that they should be treated differently. Whilst Ministers acknowledge that removing the law on time-bar for survivors of historical child abuse will not address all of the challenges of bringing a case to court or guaranteeing a successful outcome, it is anticipated that this proposal will at least provide pursuers with better opportunity to raise their action without having first to hurdle the burden of proof stage to exempt their case from the limitation rules.

2.5 On 25 June 2015 the Scottish Government published a written consultation paper to seek views on matters associated with the removal of the time-bar for survivors of historical abuse with responses invited by 18 September 2015[2]. The responses to the consultation will inform the development of legislative proposals to remove the 3 year limitation period.

2.6 This report presents the analysis of views contained in the responses to the consultation. These responses have been made publicly available on the Scottish Government website unless the respondent has specifically requested otherwise. The views are those of the respondents to this consultation and do not necessarily represent the views of a wider population.

2.7 In addition to the written consultation, a participative workshop was organised by the Scottish Government and took place in Glasgow on 19 - 20 August with survivors of historical child abuse. The workshop was mediated by independent, external facilitators with the first day devoted to considering the issues raised by the consultation. Participants provided their views in large and small group discussions, summaries of which were documented by facilitators and the content agreed with group members. This report outlines the views of the workshop participants at appropriate points throughout the analysis, alongside the views provided by respondents to the written consultation.

Consultation responses

2.8 The Scottish Government received 35 written responses to the consultation. Table 2.1 shows the distribution of responses by category of respondent. A full list of respondents is in the Annex. The respondent category applied to each response was agreed with the Scottish Government policy team. Where respondents did not fit clearly into any of the sectors, a decision was made on the closest match and a consistent policy followed.

Table 2.1: Distribution of responses by category of respondent

Category No. %
Insurance Body 6 17
Legal Representative Body 6 17
Care Provider 4 11
Local Government 4 11
Solicitor Firm 4 11
Academic 3 9
Individual 3 9
Voluntary Organisation 2 6
Survivor Representative Body 1 3
Other 2 6
Total 35 100

2.9 The largest categories of respondent were insurance bodies and legal representative bodies, each comprising 17% of all respondents. Four care providers and one survivor representative body were amongst the respondents.

2.10 Content from the responses was entered onto a bespoke electronic database to enable comparison of views and analysis.

Analysis of responses

2.11 The analysis of responses is presented in the following three chapters which follow the order of the topics raised in the consultation paper. The consultation contained seven questions in a mix of closed and open format.

2.12 Throughout the report quotes taken directly from responses have been used to illustrate specific points. These were selected on the basis that they enhanced the analysis by emphasising specific points succinctly. Quotes from a range of sectors were chosen, where the respondents had given permission for their respective response to be made public.

2.13 All numbers and percentages used in the analysis are based on the respondent population to this consultation. They are not necessarily representative of the wider population and cannot be extrapolated further.

2.14 Respondent categories have been abbreviated in the report as follows:

Insurance Body Ins
Care Provider CP
Legal Representative Body Leg
Local Government LG
Solicitor Firm Sol
Academic Acad
Individual Ind
Voluntary Organisation Vol
Survivor Representative Body Surv
Other Oth