Category: Personal Injury
The law has been shifting over the last few years to provide the survivors of historical child abuse the access to justice they rightly deserve.
In 2017, the Limitation (Childhood Abuse) (Scotland) Act 2017 came into force, removing the time bar for historic abuse claims. This allowed those who had suffered abuse as a child, the opportunity to seek compensation through pursuing a Civil Court action against the abuser, regardless of when the abuse occurred.
The Supreme Court decision in Armes v Nottinghamshire County Council in 2017 widened the law for survivors of abuse whilst in care. Not only was the barrier of a strict 3 year time limit to bring a claim lifted, this case established vicarious liability, allowing for a local authority to be pursued in respect of the abuse suffered. The local authority could now be held responsible for the acts and the omissions of the foster carers under whom the child was cared for.
These were welcomed developments in the law. It has been well recognised that survivors of historic child abuse deserve to have their voices heard, and for the harm they suffered to be acknowledged and recognised.
The Scottish Government have sought to take matters one step further, with the introduction of the Redress for Survivors (Historical Child Abuse in Care) Scotland Bill. This Bill, passed in March of 2021, will provide for a financial redress scheme for survivors of historical child abuse in case in Scotland. The scheme, not only providing further access to justice and financial redress, will also extend to non-financial redress such as psychological support.
In order to be eligible for the scheme, the abuse must have occurred whilst the person was a child, in this instance under the age of 18, whilst a resident in a relevant care setting, such as a children’s home, in Scotland. The abuse suffered must have occurred before the 1st of December 2004.
The Act will also extend to financial redress to the family of the survivor if the person has passed away before the date the Act comes into force.
The Redress Scheme will adopt a combination payment approach. Applicants may decide to apply for a fixed payment of £10,000 or an individually assessed redress payment which could see a payment of up to £100,000 being made. The difference is that the applicant will have to provide a more detailed account of their experience in order to be assessed for a payment over £10,000. The level of award for an individually assessed payment will take into consideration the nature, severity, frequency and duration of the abuse. It will of course be open to an applicant who previously applied for a fixed rate payment, to apply for an individually assessed payment should they wish to do so at a later stage.
The Act comes with two time limits, the applicant will have 5 years from the date the Act is brought into force to make their claim, and 6 months from the date of decision to accept the redress. It has yet to be shown in practice, whether this 6 month period will be enough time to allow a decision to be made as to whether this is the best option for the applicant to accept the payment and waive their right to a civil case. It is therefore imperative that applicants seek legal advice at the earliest stage, to allow Solicitors to weigh up what the applicant might potentially be giving up by accepting their redress payment.
Livingstone Brown offer specialist legal advice for victims of abuse. To arrange an appointment, call us on 0141 673 0188 or complete our online contact form, and just specify which method of communication you'd prefer.