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Survivors of historic child abuse in Scotland have been working for decades to have their voices heard and to receive recognition and acknowledgement of everything they have suffered and everything they’ve had to endure since childhood. Only recently has the law finally been on their side.

The Limitation (Child Abuse) (Scotland) Act 2017 came into force in October of that year, intending to allow civil claims to be progressed where they had previously been considered “time-barred”. While the issue of limitation remains a contentious one and is still being brought before the courts, it is clear that as far as personal injury actions go, this amendment to existing law is bringing about real change for survivors.

Civil legal claims are one way of seeking justice for survivors. It is equally important that those who were taken into care by a local authority and then suffered abuse are provided an opportunity to seek some form of redress directly from the Government.

In November 2016, around the time the draft bill which became the 2017 Act was introduced to the Scottish Parliament, the Deputy First Minister, John Swinney, announced a process of consultation on the matter of financial compensation and redress for survivors of abuse in care in Scotland. That process involved survivors and survivor organisations who were asked to speak of their experiences in care and their expectations of any redress scheme.

During those discussions it was recommended that an interim or advance payment scheme be put in place to take account of survivors who were elderly or ill, and this was eventually opened to applications in April 2019. A review of the advance payment scheme has amended the minimum age of applicants from 70 to 68. A flat rate is paid to those who satisfy the criteria either of age or illness and who can show some proof of their time in care.

In August 2020 following a further period of consultation, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill was introduced to the Scottish Parliament.

The Bill sets out provision for financial and non-financial redress – for example acknowledgement, apology, and access to support or counselling. The financial elements include a flat rate, similar to the advance payment scheme, or an assessed payment based on examination of evidence submitted.

Before August’s announcement it was already known that organisations who ran care establishments where abuse occurred would be asked to pay into the Scheme, and it was also clear that payments to survivors would not be contingent on contributions from those organisations. It was not clear whether payments from the Scheme would be realistically considered full and final settlement to survivors and would be comparable to civil compensation in that respect. We at Thompsons are of the opinion that payments made by the Scheme will not reflect full value and that survivors should not be barred from pursuing civil legal action even where such a payment has been made.

That view was made clear during the consultation process.

The draft Bill contains a requirement for all applicants to the Scheme to waive their right to pursue civil legal action when the organisation who was responsible for their care has paid into the Scheme. For the Government to bar survivors from exercising their right to raise civil cases is abhorrent and flies in the face of the purpose of the Scheme.

There is real concern that the institutions in which so much abuse took place and went unpunished are continuing to escape the legal consequences they so rightly deserve to face by being given the opportunity to pay less into the Scheme than they would be liable for in the civil courts.

While the Scheme may offer a quicker resolution than legal action in some instances and may also offer the non-financial redress so many survivors deserve, it comes with such a significant compromise as to be utterly unpalatable.

While the Government stands by its decision to include the waiver in the proposed legislation, survivors continue to fight against the continued protection of organisations which failed them so significantly. Thompsons will, as we always have, stand strong with them and fight for justice.

Blog by Shona Cocksedge, Solicitor for survivors of historic abuse

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