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Financial redress for Scottish historic child abuse claims

The courts or the proposed statutory redress scheme?

The Scottish Government delivered an election commitment in December 2016 to look at financial redress for survivors of in-care child abuse, followed in October 2018 by an announcement that there would be a statutory financial redress scheme to be formulated after consultation with survivors. The scheme would include an ‘Advanced Payment Scheme’ for those survivors with either a terminal illness or aged 70 or over, (later lowered to 68 or over), which would remain open until the statutory scheme became operational.

Initial consultation with a number of survivors took place in 2017 and a formal consultation process was launched in September 2019. It is expected that the necessary legislation will be introduced to the Scottish Parliament during 2020.

What might the redress scheme look like?

Whilst no Bill is yet available early indications are that there are likely to be two possible payments under the scheme; a "flat rate" payment to be made to all eligible survivors and a second payment, (should the survivor wish to apply for it), based on an assessment of the actual level of abuse suffered by the survivor.

The courts or the redress scheme?

It is also anticipated – the consultation document seeks views in this regard – that a survivor who receives a payment under the statutory scheme will be required to sign a "waiver" precluding them from then bringing any court action against the care providers. If this were to become a term of the scheme, survivors would have to carefully consider which course of action to pursue.

Quantum

Whilst it is only one of a number of factors that might influence survivors, the amount that they are likely to receive will no doubt have a bearing on how survivors ultimately decide to proceed. Early indications are that payments under the scheme are unlikely to exceed six figures – it is anticipated that bands and/or tariffs will form part of any forthcoming Bill – whereas a court is not bound by such constraints.

The English Province of the Congregation of Christian Brothers [2020 SCEDIN 13] PIC_PN2600_18

There are currently few reported cases on quantum in respect of historic child abuse claims in Scotland and so the decision of Sheriff Kenneth J McGowan in The English the Congregation of Christian Brothers provides useful guidance.

In this case the pursuer sought damages in respect of physical and sexual abuse that he suffered at the hands of three individuals while he was placed in a residential school for a period of just under two years from the age of 14.

The court found that as a child whose early family life had been unstable, whose education had been disrupted and who had been in care, the pursuer was one of the more disadvantaged of his school year and that it is was likely that he would have faced significant difficulty in making the transition from school to regular employment, with periods of unemployment in his early working life, even if he had not been abused whilst in care.

It took the pursuer a long time to form a physical relationship with his wife - they married when he was 20 years old; he was not good around other people - he did not have ‘best friends’- and was very aware of his own surroundings at all times and did not trust other people apart from his wife.

Although it was not diagnosed at the time, the pursuer developed Post-Traumatic Stress Disorder (“PTSD”) shortly after leaving the residential school as a result of the abuse, a condition that persisted to the present day. The pursuer’s mental health had been affected by his PTSD throughout his adult life. He had problems with nightmares and flashbacks; he would regularly wake, thrashing and sweating and in a panic and used alcohol as a coping mechanism in order to be able to sleep.

There were periods when he felt useless; exhausted; his self- confidence went up and down. He struggled to keep going and attempted suicide on more than one occasion and felt the need to drink to ‘calm his demons’ which he felt were his temper and the things that had happened at the residential school. He felt he had not deserved the things that had happened to him there.

The pursuer had a ‘nervous breakdown’; he would sit and stare into blank spaces, refused to tell his wife what was on his mind, was unable to work and refused to apply for state benefits. He did not seek or receive any assistance or treatment from a psychologist. Appropriate therapy would have been likely to bring about greater stability in his psychiatric and psychological symptoms but there would not have been full remission or resolution and the pursuer said that if offered such treatment he would refuse it as he did not consider that it would do him any good.

Held:

The pursuer was awarded:

1. Solatium  £120,000
2. Interest on solatium £95,439
3. Past wage loss £15,000
4. Past loss of employability  £30,000
5. Total interest on past loss of earnings £36,785
6. Future loss of employability £20,000
Total damages £317,224

Comment

It remains to be seen whether court awards of this magnitude will influence the outcome of the statutory scheme consultation process and lead to higher bands/tariffs than those presently anticipated.

For further information or assistance on any of these issues please contact Pamela Stevenson, Partner on 0141 375 0867 or pamela.stevenson@weightmans.com.

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