Introduction
In March 2020, the Office for National Statistics estimated that 3.1 million adults in England and Wales had experienced sexual abuse before the age of 16.Footnote 1 This is a global crisis. National and institutional inquiries have been conducted across the world – including in the US, Australia, New Zealand, Ireland, Germany, France, Spain, and Japan. Statistics from Australia highlight the impact of such abuse. Of the estimated 3.7 million survivors of child sexual, physical and emotional abuse in Australia, Pegasus Economics calculated that 1.04 million survivors would not have faced negative life outcomesFootnote 2 had they not been maltreated as children.Footnote 3
The Australian Royal Commission concluded in 2017 that:
The sexual abuse of a child is intolerable in a civilised society. It is the responsibility of our entire community to acknowledge that children are vulnerable to abuse. We must each resolve that we will do what we can to protect them. The tragic impact of abuse for individuals and through them our entire society demands nothing less.Footnote 4
While few would disagree with this statement, the inevitable question is what response the law should make. This paper will focus on the responses of two common law jurisdictions – England and Wales and Australia – to the specific question of reparationFootnote 5 for child sexual abuse. Revelations of child sexual abuse in residential homes, schools, and other institutional settings have given rise to national scandals and calls for accountability. This has triggered significant changes in the law of tort to make it easier for victims-survivors to obtain compensation. And yet the adequacy of the private law response has been challenged by independent inquiries in both jurisdictions. In 2013, Australia established a Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). This reported in 2017, with an earlier Redress and Litigation report in 2015.Footnote 6 In 2015, the UK Home Secretary set up the Independent Inquiry into Child Sexual Abuse under the Inquiries Act 2005 (IICSA).Footnote 7 This reported in October 2022.Footnote 8 Both reports highlighted that victims-survivors of non-recentFootnote 9 institutional child sexual abuse continue to face difficulties in obtaining reparation and recommended the introduction of a time-limited state-based redress scheme. As we will see, Australia responded with the establishment of a National Redress Scheme for Institutional Child Sexual Abuse in 2018 and, following the 2015 Redress and Litigation report, the introduction of state legislation reforming private law and seeking to remove the obstacle of limitation periods for non-recent abuse claims and facilitating actions against unincorporated associations. We await the new UK's government's final response to the 2022 Report.
In this paper, I will examine the response of private law in England and Wales and Australia to this crisis and the role which state-based redress schemes in England and Wales and Australia play alongside private law. My focus will be on awards against institutions, not the perpetrator.Footnote 10 In practice, claims will be directed at the institutions which hired the perpetrator, given the latter is often without means or, due to passage of time, untraceable or deceased. A distinction will also be drawn between compensation at private (tort) law and redress through a statutory scheme. In providing compensation, tort law seeks to identify a monetary sum that will put the claimant, as far as money can, in the position they would have been in had there been no wrong. Any award will be conditional on proof on the balance of probabilities of pecuniary and non-pecuniary loss, eg damages may be awarded for pain and suffering.Footnote 11 In contrast, the aim of a redress scheme is not to compensate, but to recognise publicly the wrong inflicted on the victim. The burdenof proof and redress tariff will be determined by the scheme. Redress thus generally includes a financial award combined with other victim-centred provision such as counselling and psychological support and an apology.Footnote 12
A study of the relationship between redress schemes and private law is particularly important at a time when the UK government is considering in what form to introduce a state-based redress scheme following IICSA's 2022 recommendation. As will be seen, the schemes offer redress where tort law claims would fail. Given the acknowledged limitations of a response based on adversarial litigation,Footnote 13 this paper will ask whether, more radically, we should be moving from private law compensation to state-based redress? If this is not a realistic option, less radically, are there any lessons private law can take from state-based redress schemes?
1. Compensation in private law
Tort law aims to put the claimant, as far as money can, in the position they would have been in had there been no wrong.Footnote 14 We can identify two main ways in which the common law of tort responds to claims of non-recent institutional child sexual abuse: first in a finding of primary institutional liability; and secondly by holding the institution vicariously liable for individual employee default. As will be seen, despite the efforts of the courts, neither option is without difficulties for the abuse victim-survivor. Proving organisational fault on the balance of probabilities will often present an enormous challenge for a claimant, exacerbated by the historic element of the claim. While some institutions may owe a non-delegable duty of care to the claimant when they have delegated performance of their duties to another, courts have been reluctant to extend such liability to the commission of intentional torts such as child abuse. For vicarious liability, the challenge has been persuading the courts that employee abuse can be regarded as ‘in the course of employment’ when the abuse is the very antithesis of what the employee was hired to do. Further difficulties have arisen when the abuser is working for a religious, charitable or educational institution on an informal and voluntary basis: can such a worker be described as an ‘employee’, as traditionally required under the two-stage test for vicarious liability?
As will be seen, the English and Australian courts have been willing to interpret tort law to assist victims-survivors of non-recent institutional abuse to obtain compensatory damages. The means used, however, have stretched traditional legal principle and given rise to debates as to the extent to which private law should continue to evolve to meet these claims.
(a) Primary liability for organisational fault
Primary liability, that is the direct or personal liability of an institution to the victim, rests on proof that the victim's injury was caused by a failure by the organisation to take reasonable care.Footnote 15 It has two main advantages for claimants. First, the victim is not required to identify the perpetrator, whose identity may be unknown. Secondly, it directs the claim to the financially more robust institution, which is usually insured or has means. In the English case of Wilsher v Essex AHA,Footnote 16 for example, the court found that any duty owed to patients in the operation of a special baby care unit would not require consideration of the extent to which the individual doctors measured up to the standards demanded of them as individuals but would focus attention on the performance of the unit as a whole.
In terms of abuse, institutions may be found to be primarily liable where they have negligently failed to prevent the abuse taking place. Hoyano and Keenan identify four main sources of organisational liability in negligence: negligence in employing and continuing to employ staff whom the institution knew or should have known were child abusers; failing to take reasonable steps to prevent or stop physical and sexual assaults; failing to exercise reasonable supervision and direction of employees; and failing to investigate abuse following reports by the victim.Footnote 17 Such arguments were indeed employed in two of the leading abuse tort judgments in England and Wales and Australia, namely Lister v Hesley Hall Ltd Footnote 18 (Lister) and Prince Alfred College v ADC Footnote 19 (PAC). The failure of these claims serves to highlight how difficult it may be to establish organisational fault, not least in showing that the institution had actual or constructive notice of sexual abuse given its often secretive nature.Footnote 20
(i) Lister
Evidence was presented that residents of a boarding house for boys with emotional and behavioural difficulties had been abused over a number of years by its warden. It was alleged at first instance that the defendants had been negligent in their care, selection and control of the warden. Such a claim was, however, dismissed as unproven. The House of Lords chose instead to revise the course of employment test for vicarious liability to avoid the claimants being left without a claim against a solvent defendant.Footnote 21
(ii) PAC
The claimant had been sexually abused in 1962, aged 12, by his housemaster while a boarder at the school. Rumours had existed in relation to the housemaster's misconduct, but no concrete allegations had been made prior to the accusation in question. On hearing of the allegations, the housemaster was immediately dismissed. The lower court inferred from such conduct that the school had been unaware of the abuse.Footnote 22 By the standards of 1962, the school was not at fault.
What Lister and PAC highlight is the burden of proving fault, not least in non-recent cases. Obtaining proof of institutional fault on the part of the employer, eg by way of failing to take reasonable care in the organisation of a residential home or in the hiring of competent and proper staff, is likely to be protracted, complex and expensive. Such difficulties are magnified in cases of non-recent abuse due to missing evidence, faded memories, absent or deceased witnesses with records lost, mislaid or destroyed.Footnote 23 Further, difficulties go beyond the evidential. The tort of negligence requires the court to judge the conduct of the institution by the standards which prevailed at the time of the tort and not those applied today. As Lord Denning stated in Roe v Minister of Health,Footnote 24 ‘the court must not look at the 1947 accident with 1954 spectacles’. This was clearly a problem in PAC.Footnote 25
In the absence of clear evidence (or a concession by the defendant) that a reasonable employer would have identified the perpetrator as a potential abuser or would have implemented increased safeguarding measures, primary institutional liability will be difficult to establish. The courts have, therefore, sought other vehicles to permit claims in tort.
(b) A non-delegable duty to prevent abuse?
Where reasonable care is not taken of a victim by an employee or independent contractor, the institution may alternatively be liable for breach of a primary, non-delegable duty owed to the victim.Footnote 26 A ‘non-delegable duty of care’ is thus a duty to ensure that reasonable care is taken by another, rendering the institution primarily liable on proof that the person to whom the duty has been delegated has been negligent.Footnote 27 Both Australian and English law accept that non-delegable duties exist to protect victims in certain circumstances.Footnote 28 In Woodland v Essex County Council,Footnote 29 Lord Sumption identified three critical characteristics:
(i) there is an antecedent relationship between the defendant and the claimant;
(ii) it imposes a positive or affirmative duty to protect a particular class of persons against a particular class of risks and is not simply a duty to refrain from acting in a way that foreseeably causes injury;
(iii) the duty is by virtue of that relationship personal to the defendant.Footnote 30
There is clear authority this applies to institutions such as schoolsFootnote 31 and hospitals.Footnote 32 The ‘elephant in the room’, however, is whether it extends to intentional torts. While the cases I have cited so far involved negligence, the UK Supreme Court (UKSC) in Armes refused to rule out the possibility of extending common law non-delegable duties to intentional torts. Lord Reed commented (obiter):
Nor am I able to agree that a non-delegable duty cannot be breached by a deliberate wrong … [To argue to the contrary means] the local authority would seemingly be liable if the foster parents negligently enabled a third party to abuse the child, but not if they abused her themselves. That can hardly be right.Footnote 33
Armes did, however, indicate that any such liability would be dependent on the statutory framework under which any institution operated.
There is a growing body of literature that indicates that non-delegable duties provide a more appropriate basis for liability in child abuse cases.Footnote 34 While a majority of the High Court of Australia (HCA) firmly rejected extending the non-delegable duty to intentional torts in its 2003 decision in Lepore,Footnote 35 there are obiter dicta in its most recent ruling in CCIG Investments Pty Ltd v Schokman Footnote 36 that suggest that the HCA may be reconsidering its position. Edelman and Steward JJ argued in Schokman that the law had in the past conflated agency, vicarious liability and non-delegable duties. In their view, the distinctive nature of abuse cases, which focus on matters such as care, supervision and control, lends itself more readily to a liability framework based on a breach of a non-delegable duty of care.Footnote 37
However, the dicta in Armes and Schokman are both obiter, in cases that ultimately relied on vicarious liability to deal with the substantive claim. The weight of authority remains against extending non-delegable duties beyond negligence. This leaves us in the position where we might assert in hindsight, and in the light of the reconceptualisation of non-delegable duties in cases such as Kondis and Woodland, that cases such as Lister, Lepore and PAC would have been better decided on the basis of non-delegable duties. Indeed, reliance on non-delegable duties would have granted victims a claim that focused more directly on the context of sexual abuse and removed the necessity for an often-forced extension of vicarious liability (see below). This did not, however, occur. Instead of a revival of non-delegable duties in 2001, the UK courts chose vicarious liability as the means to respond to sexual abuse claims. This is the settled position with non-delegable duties regarded as a fall-back where vicarious liability claims fail. As the UKSC commented in Armes: ‘[Such duties] are exceptional and have to be kept within reasonable limits’.Footnote 38 Yet while there seems to be no way back for UK law, the judgments of Edelman and Steward JJ in Schokman Footnote 39 do suggest a willingness in Australia to rethink its position. This is assisted by the willingness of the HCA in PAC to focus on factors specific to abuse such as authority, power, trust, control and the ability to achieve intimacy with the victim.Footnote 40 The creation of a non-delegable duty to prevent abuse may yet be accepted in Australia.Footnote 41 At present, however, victims-survivors must turn to vicarious liability.
(c) Vicarious liability
Vicarious liability imposes strict liability on the institution (D2) for the torts of D1 if two conditions are satisfied:
(i) the relationship between D2 and D1 is capable of giving rise to vicarious liability (the relationship test); and
(ii) the commission of the tort by D1 is sufficiently connected to the relationship between the parties (the connection or course of employment test).
In the last 25 years, both the relationship and connection tests have been subject to significant legal development. The UK response has been fuelled by a desire to assist victims-survivors of institutional child sexual abuse, who are unlikely to obtain compensation from the perpetrator.Footnote 42 As will be seen, the Australian response has been slower and more cautious.
(i) Relationship test
The relationship test is most commonly satisfied by evidence of a contract of employment between D1 and D2. In case of doubt, its existence will be determined in the light of the economic realities of the parties’ relationship, adopting a multi-factorial approach.Footnote 43 However, the UK and Australia diverge in relation to the question of whether this relationship should extend to relationships ‘akin’ to employment. Australia continues to require a contract of employment.Footnote 44 In practice, this means that vicarious liability will not apply to abuse cases involving non-employees (eg Catholic priests), and volunteers (eg scoutmasters and sports coaches). In contrast, the UKSC in Various Claimants v Catholic Child Welfare Society Footnote 45 (CCWS) accepted as ‘akin’ to employees lay Catholic brothers working in a school at the instigation of a religious institution provided they were integrated into the defendants’ operations. However, the UKSC in Barclays Bank v Various Claimants Footnote 46 warned that the term ‘akin’ should not be interpreted too liberally. In particular, it should not be artificially extended for policy reasons. The courts will thus examine the details of the parties’ relationship and its closeness to traditional employment relationships.
While Australia starts to review its rejection of the ‘akin to employment’ test,Footnote 47 it is interesting that a retrenchment is taking place in England and Wales. For example, SKX v Manchester City Council Footnote 48 rejected both a non-delegable duty and vicarious liability in relation to a local authority that had placed the claimant with a privately-run children's home in the 1980s. Given that the abuse had been perpetrated by a senior employee of a privately-run home, the court refused to classify the local authority and company's relationship as ‘akin to employment’. The company was not part of the local authority's organisation and was not integrated into its structure. It was a classic client/independent contractor relationship, and it would be unfair, said the court, to vest the local authority with vicarious liability for the abuser's actions.
(II) Connection or course of employment test
Under the traditional ‘Salmond’ testFootnote 49 for ‘course of employment’, most cases of sexual abuse were excluded from the scope of vicarious liability.Footnote 50 The response of the UK House of Lords in Lister v Hesley Hall Ltd Footnote 51 in 2001 was to replace the Salmond test with one of ‘close connection’: were the perpetrator's torts so closely connected with his employment that it would be fair and just to hold the employers vicariously liable?Footnote 52 In Lister, the warden's abuse was found to be closely connected to his duties in caring for the boys. While the UK courts have struggled to determine the scope of the ‘close connection’ test,Footnote 53 the current test, stated in the 2023 abuse case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB,Footnote 54 asks whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor's employment or quasi-employment.
The HCA was initially resistant to the close connection test.Footnote 55 However, in the 2023 negligence case of CCIG Investments Pty Ltd v Schokman,Footnote 56 it determined the question to be whether the employee's negligent act had a sufficiently strong connection with the employment, and what is entailed in it, so as to be said to have been done in the course of that employment.Footnote 57 The HCA did acknowledge, however, that in cases of sexual abuse something more than sufficiency of the connection between the wrongful act and the employment may be necessary to better explain the basis for vicarious liability.Footnote 58 This was explained in more detail in PAC, where the majority noted that, in determining whether the special role assigned to the abuser was connected to the act of employment (or, to use the wording of PAC, provided the ‘occasion’Footnote 59 for the abuse), particular features should be taken into account:
They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.Footnote 60
The UKSC in BXB also accepted that abuse cases raised distinct issues, which could be addressed within the ‘close connection’ test. In the words of Lord Burrows:
The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability … The idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests.Footnote 61
Lord Phillips in CCWS, for example, identified creation of the risk of abuse in institutional caring environments as a key element: ‘[c]reation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability’.Footnote 62 The factors identified in PAC above may also be seen as risk-related: the greater the level of trust, control and intimacy, the greater risk of abuse. The courts thus recognise that the modern tests need to be flexible enough to respond to the particular features of abuse claims. Both the UKSC and HCA emphasise that courts should refer to analogous cases to ensure a more principled approach to the law. The majority in Schokman argued that reference to factually similar decisions ‘is part of the method of the common law and the means by which it develops’.Footnote 63
The incremental development of vicarious liability nevertheless highlights its limitations as a means to facilitate compensation for abuse victims. The ‘close connection’ test is fact-specific and hence can be unpredictable. In focusing on finding a connection between the tort and the workplace duties of the perpetrator, it raises the question of the extent to which courts should take account of the particular characteristics of sexual abuse, not least the fact that harm generally arises due a breach of trust by the perpetrator who relies upon disparities of power between him/herself and the victim. While some cases are receptive to the specific context of abuse (CCWS; PAC), cases such as BXB seem more resistant, arguing that it is only:
… having applied the tests to reach a provisional outcome on vicarious liability, … [that it may] be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy.Footnote 64
Given the limitations of the common law and the reluctance of certain judges to engage with policy discussions, one obvious solution would be to turn to the legislator and request legislation specifically designed to facilitate compensation claims for child sexual abuse. The legislator is far freer than the judiciary to discuss matters of policy and indeed overturn precedents obstructing reform. In Australia, this has occurred. The Royal Commission in 2015 recommended a statutory reframing of non-delegable duties and vicarious liability in the context of child sexual abuse, together with measures to remove procedural obstacles to claims. In the next section, I will address the extent to which legislative reforms in Australia have improved the private law response to abuse victims. Does this indicate that similar legislative intervention would be desirable for England and Wales?
2. Resolving private law uncertainty through legislation
Legislation in tort law is often triggered by dissatisfaction with the operation of the common law.Footnote 65 In Australia, the Royal Commission in its Report recommended legislation to assist victims-survivors prospectively given the difficulties they faced obtaining compensation in private law. Reforms to primary and vicarious liability and to procedural obstacles have followed.
(a) A statutory non-delegable duty/reversing the burden of proof
In its 2015 Report on Redress and Civil Litigation,Footnote 66 the Royal Commission noted that despite some case law support, the majority of judges at that time opposed the introduction of a non-delegable duty in abuse cases, favouring a response based on vicarious liability. It recommended that it was time for Australian State and Territory parliaments to impose a statutory non-delegable duty of care. This would be applied prospectively on any residential facility for children, school or day care facility, religious organisation or other facility operated for profit that provides services for children that involve the facility having the care, supervision or control of children for a period of time.Footnote 67 Regardless of whether such a duty was introduced, the Commission also recommended that the onus of proof be reversed, that is, institutions should be liable for child sexual abuse by their members or employees unless the institution proves it took reasonable steps to prevent abuse.Footnote 68
Unfortunately, the reaction of the parliaments has not been uniform. This places victims-survivors in a difficult position in that the level of statutory protection varies across Australia. Victoria was early to act with the Wrongs Amendment (Organisational Child Abuse) Act 2017 which inserted new sections 88–93 into the Wrongs Act 1958 (Vic). Section 91 provides for liability of organisations. They owe a duty to take the care that, in all the circumstances of the case, is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation. The organisation is presumed to have breached this duty of care unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question. Section 6F of the Civil Liability Act 2002 (NSW) makes similar (but not identical) provision, imposing a statutory duty of care which the organisation is presumed to have breached unless the organisation establishes that it took reasonable precautions to prevent child abuse: section 6F(2), (3).Footnote 69
These duties differ, however, from the recommended wording of the Commission report. Notably, defendants are permitted to rebut liability by proof of reasonable care. This has led commentators to interpret the NSW legislation as negligence with a reversed burden of proof, expressing fears that all a defendant will have to do is call some evidence asserting it took reasonable care for the effective evidentiary onus to be shifted back to the plaintiff.Footnote 70 Griffin and Briffa assert, in relation to the Victorian legislation, that it is hard to characterise as a ‘non-delegable’ duty, a duty under which an institution can avoid liability simply by proving that it took reasonable precautions, even if legislators, in their view wrongly, insist on using this term.Footnote 71
Why, then, did the legislators not follow the more stringent recommendations of the Commission? Imposing a non-delegable duty for criminal intentional wrongdoing was regarded as contentious, particularly when not confined to specific institutions as recommended by the Royal Commission.Footnote 72 Griffin and Briffa note Parliamentary discussion in Victoria that a reverse onus of proof would strike the ‘appropriate balance’ in ensuring the Bill would be fair to both victims and organisations.Footnote 73 Legislators at the very least struggled to deal with the unsettled doctrinal nature of the non-delegable duty (not least its uneasy relationship with vicarious liability)Footnote 74 and reverted to more familiar negligence-based models. This suggests that any reform based on a non-delegable duty requires greater doctrinal analysis and fine-tuning – better undertaken, it is submitted, by the courts, with scholarly support.
(b) Vicarious liability
The Redress and Civil Litigation Report, published one year before PAC, was also critical of the failure of the Australian courts to set out a clear test for vicarious liability for sexual abuse. Legislation followed in New South Wales, with the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 inserting sections 6G and 6H into the Civil Liability Act 2002 (NSW).Footnote 75 Section 6H essentially codifies the PAC ‘occasion’ test. Section 6G, however, is more radical in that it extends the stage one relationship test to individuals ‘akin to an employee’ in sexual abuse cases.Footnote 76 Here the legislator is drawing on case law developments from England and Wales (a concept which the UKSC subsequently refined in 2020 and 2023) in response to the reluctance of the courts to extend the notion of ‘employee’ in such cases. The legislator is thus responding to dissatisfaction with the operation of the law. The problem is that only a minority of States have chosen to do this, giving rise to inconsistency in the application of the law across Australia. Further these provisions only apply to abuse perpetrated after the commencement of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.Footnote 77 On this basis, non-recent claims will still face the restrictive approach of the common law.
Again, we can identify problems with legislative intervention. An unwillingness to amend the definition of vicarious liability across the whole of Australia leads to inconsistencies and its prospective nature deprives past victims-survivors of assistance. Further, basing legislation on the case law position in 2018 creates an uneasy relationship between a test frozen in time and subsequent case law. Should section 6H, for example, be interpreted in the light of dicta in Schokman?Footnote 78 Given the lack of a uniform legislative response, development of the common law by the HCA does seem preferable in that it provides consistent rules across Australia that reflect current thinking.
(c) Procedural obstacles: limitation and unincorporated associations
(i) Limitation
Legislative intervention has proved more successful, however, in relation to limitation. For non-recent child sexual abuse claims, limitation is an obvious difficulty. While it is desirable that the courts do not process stale claims, child sexual abuse claims, for very good reasons including suppressed memories and the impact of childhood trauma, are often brought many years after the event. The Royal Commission noted that some victims take up to 22 years to speak publicly about the abuse they have experienced.Footnote 79 In its 2015 Report, it made it clear that the limitation periods in place at that time were inappropriate given the length of time that many survivors of child sexual abuse take to disclose their abuse.
In England and Wales, this issue was resolved by the courts themselves following failed attempts by the Law Commission to introduce reform.Footnote 80 In A v Hoare in 2008,Footnote 81 the House of Lords overruled its previous decision in Stubbings v Webb Footnote 82 and accepted that all personal injury claims, whether caused by negligence or trespass to the person, should fall within section 11 of the Limitation Act 1980. This signified that courts would now have a discretion under section 33 of the 1980 Act to permit the claim out of time.
Australia has, in contrast, taken the direct legislation route. Following the 2015 Redress Report recommendations,Footnote 83 uniform legislation has been adopted across Australia.Footnote 84 For example, the Limitation Act 1969 (NSW), section 6A(1) provides that:
An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.
Such provisions are subject to a right of the court to stay proceedings where it would be unfair to the defendant to proceed, eg where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 6A(6).
Here, the parliaments have followed the recommendations of the Commission. The advantage of the legislative route is that it is more straightforward and does not require, as in England and Wales, a purposive reading of section 11. This is clearer for litigants and arguably has greater legitimacy in terms of the rule of law. However, both jurisdictions give the court the right to refuse to disapply the limitation period (England and Wales) or to stay proceedings when it is deemed so unfair on the defendant to proceed as to constitute an abuse of process (Australia). This has led to the failure of a number of non-recent child sexual abuse claims.Footnote 85 More recently, the HCA has intervened and, in a radical 2023 decision, the majority accepted that, in enacting section 6A of the Limitation Act, the NSW Parliament had decided that the value the law ordinarily places on the expeditious resolution of claims had to yield to the demonstrated fact that abuse often causes life-long harm of a kind effectively disabling a person from bringing a claim for years or decades. The limitation legislation had thus ‘created a new legal context within which the alleged abuse of process must be evaluated’.Footnote 86 On this basis, in applying the Acts, it would be assumed that the intention of the legislator is to ensure:
… that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim … presumptively trumped the potential prejudice and injustice that might be caused by the passing of time.Footnote 87
Here specific Australian legislation has dramatically improved the position of abuse victims-survivors. The approach adopted by the English courts, relying on the general wording of section 33 of the 1980 Act, does not lend itself to such an approach. IICSA has recommended that England and Wales should introduce legislation similar to that of Australia.Footnote 88
(II) Unincorporated associations
The 2015 Commission Report, in chapter 16, found that victims-survivors experienced difficulties in finding the proper defendant where the defendant, often a faith-based institution, was an unincorporated body that lacked legal identity. This problem was addressed by the UK courts in 2012, which held in CCWS that:
Because of the manner in which the [defendant] carried on its affairs it is appropriate to approach this case as if the institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.Footnote 89
The Irish Supreme CourtFootnote 90 has been openly critical of such reasoning which involved, in its view, treating the unincorporated association as something ‘which by very definition it is not’. In contrast, the Royal Commission recommended the introduction of legislation that provides that where a survivor wishes to commence proceedings for compensation for institutional child sexual abuse against an unincorporated association, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings: (a) the property trust is a proper defendant to the litigation; and (b) any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust: Recommendation 94.
Again, there has been a positive response in Australia. The Civil Liability Act 2002 (NSW), sections 6I–6P, for example, provides for child abuse proceedings to be brought against unincorporated organisations, enabling an organisation to pay liabilities arising from child abuse proceedings from the assets of an associated trust in certain circumstances. Similar provisions exist across Australia.Footnote 91 In this context the legislative route is undeniably clearer and doctrinally more coherent than that utilised by the UK courts.
Australia provides us with insights into the extent to which private law, supported by legislative intervention, can respond to compensations claims by victims-survivors of abuse. Legislation seems more adept, as we have seen, in dealing with procedural obstacles than reforming the common law. In the next section, I will contrast this private law response with statutory redress schemes which have been implemented in Australia and are proposed for England and Wales. Do they offer a better alternative to private law litigation? More radically, can they, and should they, replace private law compensation?
3. State-based redress schemes
A redress scheme can be defined as a non-adversarial process by which financial redress (and potentially other forms of redress) may be provided to applicants. Unlike litigation settlement schemes, which may be used to compensate groups of claimants who have initiated civil claims against defendants, redress schemes sit outside of the civil justice system. Daly and Davis emphasise that payments under the scheme should not be labelled ‘compensatory’. They symbolise recognition of the wrong committed against the applicant.Footnote 92 As such, they represent a trade-off. Victims-survivors avoid the stress of civil litigation and benefit from a lower evidence standard (in Australia, reasonable likelihood) rather the civil standard of balance of probabilities. The quid pro quo is that average payments will generally be lower than those found in civil litigation or direct negotiation.
This section will examine the state-based redress schemes proposed for England and Wales and in place in Australia. While private redress schemes exist in both jurisdictions, they are widely regarded as less effective than state schemes, both in their scope and lack of transparency.Footnote 93 Both IICSA and the Royal Commission argued that state-based redress schemes were needed.
(a) England and Wales
The IICSA report was critical of the responses of both private law, arguing that its protracted and adversarial nature was often retraumatising, and of existing compensation schemes such as the Criminal Injuries Compensation Scheme (CICS). The latter provides redress for victims of violent crimes, although claims are capped with a maximum award of £500,000. Yet, as IICSA noted,Footnote 94 the CICS eligibility criteria have proved problematic in practice for sexual abuse victims-survivors, not least the requirement that the crime has been reported to the police (often unrealistic in this context). No award will be made to applicants who have unspent criminal convictions for offences that resulted in certain sentences.Footnote 95 Time limits may also be an issue.Footnote 96 The Inquiry recommended that changes were needed, notably that the UK government should amend the rule on unspent convictions so that applicants with unspent convictions are not automatically excluded where offences are likely to be linked to the circumstances of their sexual abuse as a child. The time limit for child sexual abuse applications should also be increased so that applicants have seven years to apply from: (a) the date the offence was reported to the police; or (b) the age of 18, where the offence was reported whilst the victim was a child; and (c) in either circumstance, the claims officer's discretion to extend the time limit should remain. UK government consulted on reform of CICS in 2023.Footnote 97
Given clear evidence of dissatisfaction with the CICS and the civil justice system, IICSA recommended that:
… to acknowledge the State's responsibility to protect children from sexual abuse and the consequent harm experienced over many decades … a national redress scheme be established in England and Wales.Footnote 98
IICSA noted that state-funded schemes had already been set up in a number of other jurisdictions, including Ireland,Footnote 99 Northern Ireland,Footnote 100 Jersey,Footnote 101 AustraliaFootnote 102 and ScotlandFootnote 103 and that the UK government had established in 2019 a state-funded scheme for surviving former child migrants, following the Inquiry's recommendation.Footnote 104 While IICSA concluded that no amount of money could fully compensate victims for the child sexual abuse that they had experienced, the provision of monetary awards with access to support and therapy would help victims-survivors to deal with the abuse and its consequences.Footnote 105
The aim, therefore, is to provide a scheme which provides redress with speed, simplicity, and certainty that the civil litigation system does not provide.Footnote 106 It would run for five years for applicants who have experienced child sexual abuse in circumstances where there was a clear connection to state or non-state institutions in England and Wales. The scheme would be funded by central and local government, in accordance with devolved funding principles, with voluntary contributions sought from non-state institutions. There is an expectation that institutions responsible for the well-being or welfare of children which failed to protect them from sexual abuse will contribute to the funding of the scheme, unless they have already (or intend to) set up their own redress schemes.Footnote 107
IICSA expressly acknowledged that the aim of such a redress scheme is not to replicate compensation at private law. Its aim is to acknowledge the experiences of victims and survivors by monetary and non-monetary means. An applicant may still pursue a civil law claim, but credit would have to be given for any redress payment to avoid double recovery.
Key characteristics of the scheme should be noted: it would be restricted to institutional child sexual abuse that took place prior to the scheme's establishment; operate for a defined period (five years); would exist alongside the civil justice systemFootnote 108 and CICS; would be funded by the government and (hopefully) non-state institutions; with a goal of straightforward processes to secure efficient access to redress.
In May 2023, the government announced that it had accepted the need to introduce a redress scheme for survivors of child sexual abuse in England and Wales. However, it regarded setting up such a scheme as a complex exercise. On this basis, ‘[t]he detail of the scheme, including eligibility, types of redress available, the extent of any financial component, and application process, will be considered following extensive engagement, including with victims and survivors, third sector organisations, local authorities, insurers and lawyers’.Footnote 109 In other words, a further consultation process would be established. Given IICSA's clear recommendations following extensive consultation, its panel did not take this well.Footnote 110 The UK government approach has been criticised for causing further unwarranted delays and failing to draw on existing schemes already operating in the rest of the UK. While positively it does amount to a commitment to a redress scheme at some point, it is unclear to what extent it will mirror that recommended in the IICSA report. We await, therefore, vital details including what the scheme might look like, how it will be funded, and its eligibility requirements. The children's charity Article 39, representing children in institutional care, has described the government response as ‘woeful’.Footnote 111
(b) Australia
In contrast, the Australian National Redress Scheme was established in July 2018 with institutions named in the Royal Commission Report given a two year opt-in window.Footnote 112 While the Royal Commission produced its Final Report in December 2017, its earlier 2015 Redress and Civil Litigation Report had contained recommendations for the provision of effective redress for victims-survivors of child sexual abuse through the establishment, funding and operation of a single national redress scheme and the provision of a direct personal response to survivors by institutions. (This report also contained recommendations for reforms to civil litigation which were examined above.) The Redress and Civil Litigation Report questioned the adequacy of criminal compensation schemes, noting their caps and how they differed between States and territories.Footnote 113 The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (2018 Act) followed, providing that victims of child sexual abuse in an institutional setting might seek:
• a redress payment (of up to $150,000);
• access to counselling and psychological services or a counselling and psychological services payment (of up to $5,000); and
• a direct personal response from each participating institution responsible for the abuse.Footnote 114
This would be in exchange for releasing the relevant institution from civil liability.Footnote 115
The Scheme runs for ten years (ending 30 June 2027). Awards are determined by the type of abuse and fixed amounts are allocated to recognise the sexual abuse. Eligibility, as in all schemes, is a key question. A person will meet the Scheme's eligibility requirements where there is a reasonable likelihood that:
(i) the person was sexually abused;
(ii) the sexual abuse is within the scope of the Scheme;
(iii) the sexual abuse is of a kind for which the maximum amount of redress payment that could be payable to the person would be more than nil (ie within a type of abuse under the Assessment Framework);
(iv) one or more participating institutionsFootnote 116 are responsible for the abuse; and
(v) the person is an Australian citizen or a permanent resident.
Abuse is within scope of the Scheme if it occurred when the person was a child, inside a participating State, inside a Territory, or outside of Australia, and it occurred before the Scheme start day (1 July 2018). The Scheme includes all Commonwealth institutions, but State, Territory and non-government institutions will only be bound by the Scheme if they agree to join it.Footnote 117
Many institutions have agreed to join the Scheme. These include all State and Territory governments and many of the major churches and charities, including the Catholic Church, the Anglican Church, the Uniting Church, the Salvation Army, the YMCA and Scouts Australia. Almost 600 institutions across Australia have signed up to the Scheme. However, waiting for institutions to sign up has been extraordinarily painful for survivors.Footnote 118 To encourage non-Commonwealth institutions to join, financial consequences were threatened against institutions which did not join the Scheme, such as loss of charitable status and the withholding of government grants.Footnote 119 This seems to have been successful. For example, in September 2021 the Jehovah's Witnesses were one of 34 institutions which joined the Scheme following threats by the Federal Government of financial repercussions, including potentially removing their charitable status.Footnote 120
The Australian Federal Government is liable for the initial costs of payments and administration, but participating institutions are required to reimburse their share of the costs.Footnote 121 The Scheme thus works on a ‘responsible entity pays’ basis, meaning that although it is administered by government, the institutions responsible for the abuse are responsible for providing redress (provided, of course, they sign up to the Scheme).Footnote 122
Nevertheless, despite the success in encouraging non-State institutions to join the Scheme, its administration has proven less than smooth. The second anniversary review of the Scheme in 2021 concluded that a significant and urgent reset of the Scheme was required to deliver on the commitments undertaken by government and confirm that the Scheme is a survivor-centred, humane and less onerous option than civil action.Footnote 123 The review stressed the need for meaningful changes to meet the key Royal Commission objective that the process be simpler and easier to use than civil litigation, achieving the right balance between detail and flexibility, where flexibility is consistent with achieving justice for victims. A major concern among survivors was the length of time taken to progress through the Scheme and receive redress. The review reaffirmed the importance of more assertively increasing public awareness of the Scheme and condemned restrictions on eligibility that particularly disadvantaged children, non-citizens without permanent residency status and prisoners.
The Australian and State and Territory governments’ belated response in May 2023Footnote 124 commits to an overhaul of the redress scheme to simplify its processes, ensure more sensitive and appropriate handling of abuse survivors and applications, and expand its eligibility criteria, eg people who are incarcerated will now be able to lodge an application. Not least, it commits to a significantly simplified application form. Nevertheless, not all recommendations of the second review were accepted.Footnote 125
We can identify key similarities between the Australian Scheme and that proposed by IICSA for England and Wales. It is:
(i) confined to institutional child abuse which incurred prior to Scheme's establishment;
(ii) open for a defined period (10 versus 5 years);
(iii) subject to strict eligibility requirements and restrictions on compensation. The cap for Australia is Aus$150,000 (approximately £81,000).Footnote 126 Redress will not, for example, include any amount for loss of income or pain and suffering;
(iv) able to offer redress that includes counselling and psychological support and provision of a direct personal response from the responsible institution(s); and
(v) aiming to offer straightforward processes with secure efficient access to the help victims-survivors need.
Unlike the English scheme, which permits the survivor to ‘top up’ a redress award with tortious damages, if the victim-survivor accepts the offer of redress, no alternative civil claim will be permitted for abuse covered by the Scheme.Footnote 127 This might be seen as an incentive to encourage non-Commonwealth institutions to join the Scheme. It further alleviates concerns that the prospect of more generous civil claims may give victims an incentive to ‘upgrade’ their benefits by bringing a tort claim, undermining the efficiency goals of the Scheme.Footnote 128 However, as has been seen, one issue has been participation of non-governmental institutions requiring, ultimately, additional measures to ‘encourage’ certain institutions to join the Scheme. Similar issues are likely to arise in the scheme for England and Wales and more thought is needed on incentivising participation.
The 2021 review has also highlighted potential difficulties in achieving aim (v). Researchers have noted the negative impact of an overly bureaucratic scheme and the need to raise awareness of the Scheme to victims-survivors. Process concerns have led to legislative amendments to the Scheme six years into its ten-year lifespan. Cortis and Katz underline the impact of inefficiency. Delays give rise to uncertainty and the risk of re-traumatisation: ‘Waiting, usually for long periods and with little communication, was central to survivors’ experiences of policy administration, their interactions with Scheme staff, and their overall evaluations of the Scheme.’Footnote 129 They emphasise the importance of designing redress schemes to avoid such complaints and recommend that drafters should pre-emptively address the potential of the scheme to generate harm. Rapid responses, they argue, are essential for procedural justice, and particularly important for older survivors of child sexual abuse.
(c) Evaluation of state-based redress schemes
A state-based redress scheme possesses a number of clear advantages for victims-survivors of abuse. Significantly, it recognises the incommensurability of monetary compensation with the harm of sexual violence.Footnote 130 Placing a figure on the harm experienced has been termed by victims-survivors as ‘ridiculous at best and offensive at worst’.Footnote 131 Redress therefore places the monetary award alongside other elements that victims-survivors need, including a desire for public affirmation of the wrong committed against them. A redress scheme offers the State the opportunity to acknowledge its responsibility to protect children from sexual abuse and the consequent harm experienced over many decades.Footnote 132
Fundamentally, then, redress, in this context, will include a monetary award, counselling, a requirement for an apology and explanation and other forms of support that acknowledge the harm to which the survivor has been subjected. It provides a more victim-centred strategy than the blunt tool that is tort law litigation.Footnote 133 Redress schemes thus have the distinct advantage of an approach based on reporting and self-learning rather than an adversarial exercise of allocating blame.Footnote 134
This suggests that redress schemes better meet the needs of victim-survivors than bringing a claim under the adversarial tort law system.Footnote 135 In additional to a more survivor-attuned response, applicants do not bear the burden and potential traumaFootnote 136 of going to court. Daly highlights the importance to victims-survivors of being treated with dignity in addition to experiencing validation.Footnote 137 This is not easily accommodated within traditional adversarial justice systems. Further, the schemes provide redress where claims in private law would fail, either because the claimant has insufficient means to pursue the claim or, given the non-recent context, lacks evidence to bring a case on the balance of probabilities. Redress, therefore, fills a gap that private law cannot fill. Schemes aim to enhance the processing of disputes, reduce costs, and simplify and speed up the route to redress. Indeed, the administrative costs of redress schemes are vastly lower than the tort litigation system that usually has legal fees of around 55% of total compensation.Footnote 138
However, redress schemes are not a universal panacea. Eligibility requirements restrict their scope. Importantly, in the case of the child sexual abuse schemes discussed above, all are time-limited and focused on past harms. Not all institutions will be covered by these Schemes. Further, as ex gratia schemes, applicants will have no right to a financial award, nor will they receive any admission of legal liability.Footnote 139 It is important, therefore, for victims-survivors to have a realistic perspective on what they will receive. While such schemes have the distinct advantage of recognising that abuse victims seek more than financial gain, Australian critics have emphasised that victims-survivors need to be informed of, and supported in, the application process for redress. It is not enough to promise therapy; its quality and availability must be guaranteed.Footnote 140 This requires investment. Macleod and Hodges argue that for schemes to function well, they need clear parameters, transparent accountability processes, and a reliable and sufficient funding source to provide financial stability.Footnote 141 They warn that States should anticipate that the costs may be higher than expected, and that eligibility requirements may need to be revised if the coverage is found to be too narrow in practice. These warnings resonate with the difficulties experienced with the Australian Scheme shown above.
We can conclude that redress schemes can be slow and bureaucratic.Footnote 142 Their operation is far from the idealised mechanism for obtaining redress it is often depicted to be. Crucially, no State has committed to a permanent redress scheme; all are date-restricted. Eligibility requirements expressly limit who can claim and what they will receive. Future victims-survivors of abuse will have no claim.
On this basis, reparation for non-recent institutional child sexual abuse can never be regarded as simply a redress issue. No State has expressed its willingness to assume permanent responsibility to abuse victims. Realistically, then, victims-survivors must look to the State and private law to obtain reparation for the abuse they have experienced.
Conclusion: the way forward
The Royal Commission and IICSA reports have highlighted the prevalence of institutional child sexual abuse and the harm it causes. It is inevitable, despite the best efforts of these commissions to instigate change, that cases of institutional abuse will continue to come to light. Victims-survivors seek recognition of the wrong and harm done to them. The question is how we respond.
Tort law has the advantage of a principle of full compensation (including potentially aggravated and punitive damages)Footnote 143 and, as we have seen, has been prepared to adapt its rules of vicarious liability, albeit at a slower pace in Australia, to facilitate claims which incentivise institutions to take greater precautions.Footnote 144 However, judicial activism in this area has given rise to doctrinal uncertainty and concerns that judges, instead of the legislator, are making judgements on matters of policy. Lord Burrows in BXB in 2023 expressed the view that it was preferable for the courts to refer to policy only in difficult cases where no doctrinal answer is apparent. This indicates a preference for legislative intervention. And yet legislative intervention in Australia has proven less than successful in relation to vicarious liability and non-delegable duties. Its real success has been in relation to technical matters such as reversing the burden of proof in negligence, limitation and in identifying the correct defendant when suing an unincorporated association. This raises the question of whether legislation on technical matters would be beneficial in England and Wales. Legislation on procedural barriers (limitation/unincorporated associations) would provide greater clarity for claimants. Commentators in Australia have been sceptical, however, that reversing the burden of proof will make much difference given the existing obstacles to proving institutional fault. Nevertheless it does signify recognition of the difficulties of proving negligence and that victims-survivors of child sexual abuse merit special treatment in an adversarial judicial system ill-suited to their needs. Developments in Australia certainly merit monitoring to see if a case can be made in favour of this reform.
It seems clear, however, that the preferred option from the victim-survivor's perspective would be a state-based redress scheme. Antonsdóttir,Footnote 145 in her socio-legal study, recognises that the tort option can only partially satisfy survivors’ interests. Redress schemes give applicants a streamlined application procedure to make claims for redress faster and simpler. They also fill an ‘evidential’ gap for applicants unable to meet the private law balance of probabilities test. ‘Redress’ is taken broadly to include the need for counselling and a response from the institution in question. It represents a strong statement from society that a wrong has been committed that needs correcting. It is therefore strongly argued that the UK government should introduce as soon as possible a redress scheme for England and Wales. In so doing, my study has highlighted particular questions that the new scheme needs to address:
• How to avoid the delays that have plagued the Australian scheme?Footnote 146 Is a five-year period long enough to process claims? Is an interim review planned?
• How to motivate non-state bodies to participate in the Scheme? Here, the Australian experience is particularly helpful.
• What will be the eligibility requirements? Whom do they exclude, and is this defensible?
• Are capped levels of monetary payments sufficient to discourage resort to private law, undermining the objectives of the Scheme? Should restrictions be placed on private law claims as in Australia?
Yet, whatever scheme is adopted, there will be those who are unable to access redress. As this paper has shown, redress schemes have struggled to involve all institutions where child sexual abuse has taken place. Such barriers will add to the trauma experienced by applicants. Further, none of these schemes offers a permanent source of redress. They are time-limited and do not, therefore, provide a long-term solution.
This leads to a number of conclusions. First, the proposed Redress Scheme for England and Wales would benefit greatly from learning lessons from the Australian experience, outlined above. To neglect such a valuable source of guidance would be ill-advised. Secondly, private lawyers must accept that the existence of redress schemes does not relieve private law of the need to respond to claims by abuse victims. The challenge for the common law courts is to apply the rules relating to primary and vicarious liability and non-delegable duties in a way that recognises the specific characteristics of non-recent child sexual abuse claims. In Australia, this has led to discussion of the possibility of a specific non-delegable duty for abuse victims. While the UK currently rejects this option in favour of vicarious liability, Lord Burrows asserted in BXB that the ‘necessary tailoring’ is already reflected in the modern law of vicarious liability. Reference to precedents such as Lister and CCWS will therefore be needed in abuse cases to establish the correct framework for analysis. It remains to be seen whether this is sufficiently clear to guide the courts. Finally, inspiration for reform of private law may be gained from examining the obvious benefits of redress schemes for victim-survivors. For example, they assist with evidential difficulties and, on this basis, legislation reversing the burden of proof in claims for institutional negligence would assist some claimants. Further, IICSA explicitly raised the prospect of reforming section 2 of the Compensation Act 2006 on apologies, to extend it to vicarious liability.Footnote 147 This is currently being considered by the UK government, although it is of concern that the consultation paper appeared less than enthusiastic, flagging a lack of empirical evidence that section 2 has changed litigation practice.Footnote 148 Given criticism of the narrow wording of section 2,Footnote 149 this is not surprising, and it is hoped that the new government will consider afresh reforming section 2 to render apologies more effective for victims-survivors of child sexual abuse. One significant development that would mirror the focus of redress schemes on the vulnerability of abuse victims would be to accept a specific non-delegable duty to prevent sexual abuse. As indicated, the English courts seem resistant to such an approach and legislation on this point in Australia proved unsuccessful. It remains to be seen whether the HCA is brave enough to embrace this reform.
The last 20 years have seen significant developments in our justice systems to give victims-survivors of institutional child sexual abuse greater access to reparation. It is vital that victim-survivors are not caught between the politics of state redress schemes and private law doctrinal debate. Public inquiries have highlighted the scale and endemic nature of institutional child sexual abuse. Change is needed to ensure that ‘our legal system [deals] as fairly and justly as it possibly can with the consequences’.Footnote 150
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