HJ Talks About Abuse

Missing children in care

The Guardian has reported that MPs are to launch an inquiry into the record number of children missing from care in England.

The All-Party Parliamentary Group for Runaway and Missing Children and Adults has called for information for those who work in the area to provide their views and data as to the risks posed by children sent away for care.

The All-Party Parliamentary Group for Runaway and Missing Children and Adults seeks to raise awareness of the issues faced by children and adults who run away or go missing, as well as the families they leave behind. The APPG’s membership spans all of the main political parties in Westminster and both the Houses of Commons and Lords.  It is headed by Ann Coffey.

Coffey also wants to explore how many of these children are then lured into drug gangs as part of the so-called county lines phenomenon.

The Guardian noted the following troubling data:

• An increase of 1,000 children going missing from care homes since 2015, after being moved to new areas often miles from their homes, known as an “out of area placement”.
• Numbers have more than doubled from 990 in 2015, to 1,990 in 2018. This compares with a 31% increase for children who go missing from homes within their own borough.
• The government introduced measures in 2013 to reduce numbers in cross-boundary placements. But the inquiry notes that despite this 64% of all young people living in children’s homes now live out of borough, up from 46% in 2012.

These statistics are almost unbelievable and raise a number of very real questions about the appropriateness of out of area placements and the use of independent providers for care.

We discuss the legal framework behind this practice, the sordid history of out of area placements regarding the Bryn Alyn Community, whether any lessons have been learned from the Bryn Alyn scandal, whether the sending away of children is a proper discharge of the duty of care owed to children in care and whether this practice should continue.

Unsafe retractions

In this week’s discussion we look at how the Court of Appeal in the case of R. v SB [201801802 B2] dismissed a sexual abuse victim’s retraction of her allegations post-conviction as lacking credibility. We discuss the details of the case and the broader implications of the decision.

The victim had alleged that she had been sexually abused by her grandfather who was successfully prosecuted and sentenced to 12 years imprisonment.

Following the sentence, the victim confided to her family that her allegations were false. She provided a statement to that effect that was then used by the grandfather in support of his appeal to the Court of Appeal on the basis that the verdict was unsafe.

The Court of Appeal dismissed the appeal. Readers might think this surprising but the judges came to the conclusion that the retraction of the allegations lacked credibility. They suspected very firmly that the victim had a misplaced sense of guilt, feeling responsible for her grandfather’s imprisonment, and may have been subjected to some familial pressure.

The decision is a refreshing one in the sense that the judges have looked at the reality of the consequences of child sexual abuse. Survivors often express feelings of shame and guilt for what took place. This is, of course, misplaced, but is common amongst survivors, and they often feel responsible for the fate of their abusers. The judges have clearly been conscious of what may go through a survivor’s mind post-trial and the pressures that they come under.

The case may have wider implications because a defense often deployed in both criminal and civil courts is that due to the nature of the case, the evidence is flawed possibly through the lack of witnesses and/or the passage of time. It will be said that memories fade, evidence gets lost, and witnesses are unreliable. It will be argued that a fair trial is impossible and a judge should not attempt to decide fault or otherwise. This case it could be argued says that judges should look at reality and take into account the nature of sexual abuse and come to a decision. The Limitation Act 1980 says that claims for compensation should be brought within 3 years of the abuse, or in the case of a child within 3 years of their 18^th birthday but because of the damage caused by the sexual abuse this is all too often impossible, and so the survivor has to try and persuade the court to allow the case to proceed out of time. Maybe the case of R v. SB will provide some power to the survivor’s elbow where the evidence is contradictory and at first blush apparently unsafe, and argue that the court should look at the bigger picture.

If you would like to talk to us about your experience with abuse or would like to suggest a topic for a future episode, visit the sexual abuse claims page.

BBC Poll: Is child abuse less “forgivable” than murder and rape?

Child abuse less “forgivable” than murder and rape – that is the conclusion reported by BBC to a ComRes survey. Today’s podcast is going to try and delve into this a little. The first point to make is that we are not survivors. We respect the thoughts and positions of survivors, and it is not for us to say who is right and who is wrong etc   What we want to do is explore and discuss the survey and what lies behind some of the findings.

Below are some of the findings from the ComRes poll:

---

Child abuse is considered “impossible to forgive” by nearly nine out of 10 British adults – more than murder and rape – a poll for the BBC suggests.

Eight out of 10 people said sexual abuse, including rape, was unforgivable compared with just over seven out of 10 for murder.

One in four women found infidelity unforgivable compared with fewer than one in five men.

One in 10 of the 2,042 polled by ComRes could not forgive social media abuse.

The poll for BBC local radio asked how willing people would be to forgive someone for actions ranging from swearing to child abuse.

More women than men found child abuse impossible to forgive, with 89% of women compared with 80% of men.

Women were also more likely to find sexual abuse, including rape, impossible to forgive, with 83% compared with 75% of men.

Fewer men found infidelity impossible to forgive, with 19% of those responding compared to 26% of women.

---

Society has decided that child abuse is wrong. There are very clear laws that reflect this. Punishment has evolved over recent years that reflects the gravity and serious consequences of CSA. Sentences are far tougher than say 20 years ago. Some might say not tough enough, which perhaps feeds into the possibility that forgiveness gets mixed up with punishment.

We have seen on twitter that survivors have a range of positions. Some have forgiven their abusers, others have said that they did not want them punished, others have said they could never forgive, and that prison was not punishment enough.

Murder victims, to state the obvious, are in no position to give an opinion, but their families are.  Murder carries a life sentence. It was once a capital offense which meant the murderer went to the gallows. Parliament against the wishes of the general public abolished the death penalty and the trade-off was a mandatory life sentence.  The loss of a loved one is profound. Those who have been involved in such cases are only too aware of the loss and the void that seems impossible to fill. Some are able to forgive, others come to terms, many do not.

Are the loss and the consequences the same in a CSA case? Are we in danger of comparing apples with pears?

Possible. It could be a futile comparison and an unjust one to compare the two. Both are tragic with profound consequences for those harmed, their families, and society too.

There is possibly an important difference in that, in a CSA case, there is hopefully a chance for the survivor to rebuild, or there should be. For a murder case there are no chances.

In any undertaking such as this one has to ask whether it is worth it and what it achieves?

The issue which first presents itself is who is being surveyed about what?  It is clearly not the murder victim given that the person is deceased.  Is it the family of that victim?  Is it the survivor of rape forgiving the perpetrator?  Is it society forgiving the murderer or rapist on the victim’s behalf (this seems perverse)? Or is it general attitudes as to which is worse arrived at by which is more forgivable?  It must be the latter.  But the confusion may affect the results.

Moreover, there is no explanation of what that individual considers the definition of “murder” to be.  This is a finely nuanced point and it is very likely your average person on the street when facing this question will be thinking of examples of manslaughter rather than murder and comparing it to rape.  Of course in such circumstances, the rape is worse.  For example, a classic thought will be of the battered wife who kills her abusive husband. Yes, the husband is killed, but the defense of diminished responsibility or loss of control might reduce the charge to manslaughter. Undeniably, a perpetrator breaking into a house and committing rape is worse. But it isn’t a comparison between murder and rape, it’s between manslaughter and rape. Ask the same person to compare the same exact circumstances – i.e. a masked perpetrator breaking into a house and committing rape or murder it’s likely the answer will be different.

Overall, this is surely not a very scientific survey and there may be some skewed results given an understanding of the legal definitions but nevertheless, it provokes interesting debate and almost certainly evidences a sea change in opinion as to CSA. The same survey taken 30 years ago would certainly have seen different results. One might think that religious beliefs and commitment to the idea of forgiveness would influence the results, but interestingly, two-thirds of British adults surveyed said they never attend religious services – surely another societal change from a survey which would have been taken 30 years ago!

One thing is for sure – a commitment to the safety of children and safeguarding ought to be a primary concern of government organisations, companies, charities, and religious institutions because quite clearly – people care.

Criminal Compensation Orders: vital for sexual abuse cases

In this episode, Partner Alan Collins and Sam Barker discuss Criminal Compensation Orders (CCO) and why the courts ought to be making better use of them.

Listed below are some of the key points about Criminal Compensation Orders that are brought out in this week’s episode:

The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. It can either be an ancillary order or, a sentence in its own right (which does not attract a victim surcharge). The court must give reasons if it decides not to order.

The position is clear but this power appears to be more honoured in the breach than in the observance. The courts are not making use of the power in CSA cases, and the police who are supposed to be providing the CPS with the information are clearly not doing so in either a uniform or purposeful manner. The evidence before the International Inquiry into Child Sexual Abuse (IICSA) in relation to the reasons why so few orders are made is somewhat contradictory if not vapid. It would have been useful to have heard from the judiciary in relation to this but, be that as it may, it is clear that orders are not being made when it is submitted as they should be.

Victims are routinely asked to give consent to the release of their medical records in criminal proceedings and provide impact statements for the very purpose of assisting the court when sentencing. It is something of a paradox that victims provide this information yet the question of compensation appears at best tangential and at worst something of an inconvenience. IICSA might conclude that CSA survivors are being let down through a general lack of awareness of, and lack of purpose, behind a fundamental statutory provision which is designed specifically to help deliver justice.

The courts have issued to them guidelines provided by the Sentencing Council which stipulate inter-alia that compensation should benefit the victim, not inflict further harm on them. Subject to consideration of the victim’s views, the court must order compensation wherever possible and should not have regard to the availability of other sources such as civil litigation or the Criminal Injuries Compensation Scheme. Any amount paid by an offender under a compensation order will generally be deducted from a subsequent civil award or payment under the Scheme to avoid double compensation. Any financial recompense from the offender may cause distress. A victim may or may not want compensation from the offender and assumptions should not be made either way. The victim’s views are properly obtained through sensitive discussion by the police or witness care unit, when it can be explained that the offender’s ability to pay will ultimately determine whether, and how much, compensation is ordered and whether the compensation will be paid in one lump sum or by instalments. If the victim does not want compensation, this should be made known to the court and respected.

Paradoxically, of course, criminal courts routinely obtain medical and in particular psychiatric reports in relation to the accused (or the offender) before sentencing, and this begs the question why more attention cannot be given to the victim? Maybe the answer lies in the fact that the defendant is legally represented whereas the victim is not and his or her voice sits in the hands of the police and CPS.

The MOJ’s “Victim Strategy” document interestingly makes no reference to CCO’s. Yet it recognises the requirement for the need of the provision of impact statements. It also appears that it recognises through research that the police are not providing the information which confirms, possibly, the impression that IICSA might have formed from the evidence it has taken, that is needed for CCO’s to be made.

Again, and this is paradoxical, it is said that there is a concern that if survivors are advised about the right to compensation, let alone seek it, this may enable a defence to be run on the basis that he/she is making a complaint of sexual abuse only to secure compensation. Therefore there is at best a reticence in advising survivors. Yet no evidence has been placed before IICSA to show whether cases fail because they have done so. What evidence is there that a survivor has been accused of making a false allegation (which could lead to their own prosecution of course) in anticipation of a judge making a CCO? The statutory power to make a CCO is a creature of Parliament which decided that those convicted of offences should pay compensation. Accordingly, why is it that the will of Parliament, and the rights of victims, cannot be respected?  What is there to prevent there being a statutory instrument or practice direction to prohibit such a defence from being run by the accused?

It is submitted that this is a practical answer to a nonsensical problem which is distorting the thinking in some quarters on the part of those who have the responsibility to advise survivors.

Through successful civil proceedings, brought by survivors against their abusers, compensation is awarded and obtained. This demonstrably demonstrates that if compensation orders were made and enforced they could be effective.

Andrew Griffiths MP on 28^th March 2019 presented to Parliament a bill to require the Lord Chancellor to report on the use by courts of compensation orders for child sexual abuse offences. This is the report from Hansard:

I beg to move,

That leave be given to bring in a Bill to require the Lord Chancellor to report on the use by courts of compensation orders for child sexual abuse offences; and for connected purposes.

People come to this House for many reasons—to deliver Brexit, to fight racism, to champion social justice, to reform Parliament—but I am sure that everyone in the House, from all parties, comes here to help the victims, the vulnerable, and those with the least voice, and there can be fewer in our society more in need of our help than the victims of crime, and in particular victims of child sexual abuse. In this place, we regularly discuss the abuse that has occurred in our country. It has occupied much of our time in the Chamber. We have discussed the horrendous abuse that took place in the 1970s and in the Catholic Church and the Church of England.

More recently, we have spent much time talking about the horrific and widespread abuse in towns up and down the country such as Rotherham and Bradford. The suffering of those children is indescribable and unimaginable, and it is only right that this place does all it can to reduce the possibility of such things happening again. Nobody can take away from those victims the pain that their abuse has caused, the trauma and the suffering that they have endured, not just as a child when the abuse happened but, all too often, in later life, when the trauma comes back and bubbles to the surface.

We all want to do our very best in this place for those survivors. As someone who was himself a victim of child sexual abuse, I know how difficult and traumatic it is to discuss such issues. I kept my secret hidden for some 40 years. I locked it away, chained it down and hoped it would never surface. I convinced myself that if I did not give it words, I could deny it a reality. That was my view. How wrong I was! Talking about what happened to me, and explaining it to other people, was the best thing I could have done. I hope that other people who see this debate or read my testimony will think about coming forward and speaking out about their abuse and the trauma they have suffered.

To talk about these things takes courage. If it took sitting in a psychiatric ward with a psychiatrist for me to be able to talk about my trauma, how much more difficult must it be for victims who find themselves in the courtroom—in that intimidating and forbidding place—who have to suffer cross-examination by a skilled and forensic barrister? All too often, they have to face the perpetrator—the person who caused them so much pain and anguish over their lifetime—across the courtroom. And yet they do it. They speak out. They find, from somewhere within, the courage to be able to do that. Surely we—Parliament, the judiciary and the police—should support them in any way we can if we are to stamp out the scourge of child abuse that we see all too often in our country.

The House has mandated support for those victims. One of the objectives of the Criminal Justice Act 1982 was to increase the use of criminal compensation orders to ensure that victims of crime were compensated by right, as a norm, without the need for expensive civil litigation and the prospect of having to retell and relive the story of their abuse in the courtroom. That was consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. The Sentencing Council itself says:

“the court must order compensation wherever possible and should not have regard to… other sources such as civil litigation or the Criminal Injuries Compensation Scheme.”

So if everyone agrees that survivors should receive compensation as of right, and judges have the power to award that compensation straight away, at the time of sentencing, CCOs in child sexual abuse cases should be used regularly and to good effect. Surely that is a given, is it not? Sadly, the answer is a resounding “No”.

In 2017, the last year for which figures are available, there were some 6,861 convictions: 6,861 people were found guilty and sentenced for committing a child sexual abuse crime. Yet in how many of those 6,861 cases in which a CCO could have been used was one received? How many would the House suggest—50%, 25%, even 10%? The shocking reality is that just 26 people received compensation: just 0.4%. That is a criminal act. We should be ashamed that we are treating victims of child sexual abuse in that way. It is an outrage. We are letting down the survivors, and we must do something to change that.

The power is there. It lies in the hands of the judges, but they are simply choosing to ignore the use of CCOs. Despite all the guidance that the Ministry of Justice has issued and all the advice that has been given to the judiciary over many years, the courts are simply ignoring it, either by design or by accident, and compensation is not being given to the people who so justly deserve it. Moreover, although the police are supposed to be providing the CPS with information at an early stage so that judges can make the necessary decisions when sentencing, that information is simply not being collated. The crazy thing is that all too often the police do collate information for the courts, but when in this instance, when there seems to be an obvious opportunity to use CCOs for a good purpose, the information is not being gathered.

Evidence shows that victims are being let down through a general lack of awareness and a lack of purpose behind a fundamental statutory provision. How can it be that we are not using such a simple tool to help those victims? I am sorry to report to the Minister that the Ministry of Justice’s “Victims Strategy” document, although it is a great document—very worthy and very laudable—makes no reference to the use of CCOs.

My Bill asks the Government to report routinely to Parliament on the use of CCOs in child sexual abuse cases. Let me quote a well-known phrase that my dad used to use: “What gets measured gets done”. I firmly believe that such reporting, if adopted by the Government—in association with other simple and straightforward methods—will stimulate the judiciary to secure for the victims the compensation scheme that they deserve.

I thank all the Members who have supported the Bill so far, particularly my hon. Friends the Members for Lewes (Maria Caulfield) and for Congleton (Fiona Bruce), the hon. Members for Rotherham (Sarah Champion) and for Batley and Spen (Tracy Brabin), and my hon. Friend the Member for Truro and Falmouth (Sarah Newton), all of whom have been hugely helpful, as has Alan Collins of Hugh James, the solicitors, whom I also thank. However, there must be more that we can do to help those victims. It is in the Minister’s hands. Victims of child sexual abuse deserve better, and we can deliver it. I ask the House please to accept the Bill.

Question put and agreed to.

Ordered,

In our experience offenders often have the ability to pay meaningful compensation. Through civil proceedings, we have recently recovered for clients – survivors – compensation in excess of £100,000 which has and does enable them to rebuild their lives.

Click here for more information about sexual abuse claims.

Grooming Gangs

UK police are dealing with an increasing number of grooming gangs in recent years. Grooming is clearly becoming a big issue that faces social service, police the NHS and government, but more than that, it is terribly damaging to its victims. Alan and Sam discuss this pervasive and destructive trend in this week’s episode of “H|J talks about abuse”.

If you have a question that you would like covered in a future episode of the podcast or would like to speak to someone about your own experiences then email samuel.barker@hughjames.com to get in touch.

IICSA Update

Partner Alan Collins and Sam Barker discuss the progress being made with the Independent Inquiry into Child Sexual Abuse (IICSA).

If you have any questions about the Independent Inquiry into Child Sexual Abuse or would like to suggest a topic for a future legal discussion, email Sam Barker at samuel.barker@hughjames.com.

Cardinal Pell child sexual abuse case

In their latest discussion, Alan Collins and Sam Barker from the Abuse team consider the highly publicised Cardinal Pell child sexual abuse case. Pell is the most senior Catholic cleric ever to be convicted of child sexual abuse. His application for bail was yesterday withdrawn by the Judge and he will be held in custody until sentencing on 13 March.

If you have questions about sexual abuse in the Catholic church or the Cardinal Pell case specifically, visit the Abuse page and get in touch with Alan and Sam.

Vatican summit on child sexual abuse

Partner Alan Collins and Sam Barker from the Abuse team discuss the events unfolding in the Vatican today as the synod gathers to discuss child sexual abuse within the Catholic church.

Sexual abuse within the church is something that needs to be addressed every time it happens to ensure that those who perpetrate it cannot harm others.

If you have been affected by abuse within the Catholic church, visit the sexual abuse to get in touch.

The First Annual Hugh James National Conference on Child Sexual Abuse, Prevention and Support on 25 January

On 25 January we held our first Hugh James National Conference on Child Sexual Abuse, Prevention and Support in association with NSPCC Cymru/Wales. The conference was aimed at professionals and organisations that are involved in preventing, addressing and prosecuting Child Sexual Abuse (CSA) cases. Through a series of talks from an industry leading ensemble of speakers including an MP and a Welsh AM,  the conference sought to strengthen the approach to CSA, to prevent it from happening in the first place and to better support victims.

The panel discussion in the afternoon debated the question: ‘Should child sexual abuse be addressed using a public health approach?’

In this episode, Partner Alan Collins and I present a roundup of the day for those of you who could not make it. Hopefully, it will encourage you to come to the next one!

For more information on the services and events we offer visit our website.