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Resource concerns over Childhood Abuse Bill highlighted by MSPs

20 April 2017

Resource implications for bodies such as local authorities and charities, as well as the likely impact of the claim process on survivors, have been flagged up as possible concerns arising from the Limitation (Childhood Abuse) (Scotland) Bill.

In its stage 1 report on the bill, published today, the Scottish Parliament’s Justice Committee has endorsed the general principles of the bill, but states that some aspects need further consideration to ensure the right balance is struck.

The Scottish Government bill would remove the normal three year time bar for personal injury actions where these relate to alleged historic childhood abuse.

Committee MSPs believe the benefits of enhancing access to justice for survivors should outweigh the concerns expressed about the changes. "The committee notes the concerns expressed in some evidence that the removal of the limitation period undermines the fundamental principle of legal certainty", the report concludes on this point. "It also accepts that the passage of time can have a negative impact on the availability and quality of evidence. However, the committee is not persuaded that these concerns outweigh the positive impact that the bill would have for survivors of childhood abuse. It would be for the courts to weigh up the available evidence in each individual case."

Impacts

However, the proposed law needs to be carefully implemented to address the likely impacts on the finances and resources of bodies such as local authorities and charities, as they face historic claims and requests for information. "While the committee recognises the difficulties in estimating the potential impact, it does not consider the financial memorandum fully reflects the fact that the costs of the bill may go beyond those associated with defending any actions raised", the MSPs state.

"It is important that the bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities." Similar concerns exist over the ability of charities and third sector organisations to carry out their normal work. In this connection the committee warns that ministers may have underestimated the number of actions that may be raised if the bill becomes law.

The impact of the bill on survivors, who will need extensive support and guidance throughout any claim process, is also highlighted. "However", the report continues, "by removing what has been a significant barrier to access to justice, the bill will give survivors the choice as to whether to pursue a civil action."

as is the fact that the reform will not provide a solution for everybody. The committee urges the Scottish Government to consider remedies for people who suffered abuse before 1964, whose claims were completely extinguished in law after 1984.

The committee also favours explicitly including neglect within the definition of abuse in the bill, as this would be consistent with other domestic and international law, including the Government's proposal to introduce a specific criminal offence relating to the emotional abuse and neglect of a child. It calls on the Government to respond on this point.

Safeguards

On the proposed safeguards for defenders, the report asks the Government to consider whether, as the courts are already obliged to act in a way that is compatible with the European Convention on Human Rights, there is a risk that including a "fair hearing test" on the face of the bill could suggest that something beyond compliance with article 6 ECHR is required, and operate so as to reintroduce the time bar.

Finally, the committee noted evidence that rehearing previously raised cases could have major legal ramifications and has asked the Scottish Government to give further thought to how this will work in practice, and to clarify its intentions as to which actions will be able to be re-raised.

Committee convener Margaret Mitchell MSP commented: “The Justice Committee is happy to endorse the general principles of this bill. It became clear to us that the time bar had created a barrier to access to justice for cases involving historic childhood abuse. The bill will help remove that barrier and give survivors a voice.

“That said, our evidence sessions raised serious questions in a number of areas that the committee considers the Government must take on board before the final bill is put to Parliament.

“In particular, the committee asks the Government to address concerns around ensuring affected organisations have the resources they need, and how those survivors who won’t be covered by this bill may still find a remedy.”

The stage 1 debate in the chamber is expected to be heard on Thursday 27 April.

Click here to view the committee's report.

 

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