HJ Talks About Abuse

When are social services liable for the abuse of children?

That is the question that the Supreme Court has attempted to answer in the case of Poole Borough Council v GN [2019] UKSC 25

The two children who were the claimants in this case sought damages for the harm they suffered whilst living in a house provided by the Poole Borough Council (“the Council”). They were subjected to persistent anti-social behaviour on the part of a neighbouring family. It was several years before the Council rehoused the children and their parents, but in the meantime, they had suffered physical and psychiatric harm. They sought compensation from the Council.

The Council defended the case even though it knew that the children were in need, had social workers allocated to them, and knew of the harassment and abuse.

The Claimants’ case was that the Council had negligently failed to exercise its powers under the Children Act 1989 so as to protect them from harm.

The Supreme Court has ruled that local authorities do not owe a duty of care at common law merely because they have statutory duties to protect a child from harm. Nevertheless, they can come under a common law duty to protect a child where for example the authority has created the source of danger or assumed a responsibility to protect him or her from harm.

In this particular case, the Supreme Court held that the Council was not liable because it had not taken the children into its care, and assumed responsibility for their care, or had accepted any responsibility for their safety.

A local authority can be vicariously liable for its social workers but there will only be liability if there has been an assumption of responsibility to perform a function with reasonable care. Such a responsibility may exist where a particular task is to be undertaken which will have to be performed with reasonable care.

What does this mean in practice?

Merely because a child at risk of harm comes across social service’s radar does not make the local authority liable if he/she is later harmed.

If however social services having recognized that the child is at risk of harm, and for example places him/her on the at risk register, but the through a failure to adequately monitor his welfare, and suffers abuse as a result then the local authority could then be liable in negligence.

There is the argument that, perhaps, the judgment is too conservative given that Parliament has decreed in the Children’s Act 1989, and other legislation, what social services must do when it comes to the welfare of children? Surely it follows that if social services do not fulfil these statutory obligations they should be liable for the harm suffered regardless of whether what actions it took, if any, were reasonable or not?

Child abuse cases are invariably tragic, and the legal issues can be complex. This case demonstrates how fact specific they are when the courts are examining the issues of whether there was a duty of care, and if so whether it was breached.

These cases have pushed the legal boundaries of negligence and it is likely in years to come the Supreme Court will be asked to examine and rule on the question when are social services liable for the abuse of children?

IICSA Hearing into child protection in religious organisations and settings

The Independent Inquiry into Child Sexual Abuse (the “Inquiry”) has announced a hearing into child protection in religious organisations and settings.

So, what does this mean?  The Inquiry has to date examined large religious institutions in the UK such as the Roman Catholic Church and the Anglican Church, along with other religious instructions and state based organisations.

However, this has left quite a significant gap in the field as many religious denominations and other institutional religions have escaped scrutiny.

This is a welcome announcement given the figures released by the Truth Project indicate more than one in ten survivors who shared their account were abused in a religious institution, which equates to 11% overall, and of that group, almost a quarter, being 24%, were abused in institutions to be examined in the new hearing.

The first relevant question which arises is which religious institutions are subject to this hearing?

The Inquiry considers a religious setting or organisation to include:

1. Places where people gather to engage in collective rituals designed to bear witness or share collectively in  their religious faith (e.g. mosques, temples, festivals);
2. Places of tuition regarding one’s faith tradition or cultural matters related to religious observance or faith, such as preparation for rites of passage (e.g. Jewish yeshivas and chedarim, Muslim madrassahs, Christian Sunday schools); and
3. Places where children and young people gather in connection with their religious beliefs (e.g. youth groups, camps)

The Inquiry will focus upon those religious organisations with a significant presence within England and Wales, including but not limited to:

1. “Non-conformist” Christian denominations;
2. Eastern and Coptic Orthodox communities;
3. Pentecostal churches and independent charismatic and house churches;
4. The Church of Latter Day Saints;
5. The Jehovah’s witnesses;
6. Islam;
7. Judaism;
8. Hinduism;
9. Jainism;
10. Sikhism;
11. Buddhism

Given the scope of such a hearing, it is difficult to see how exactly the Inquiry will deal with such a prevalent issue across such a broad range of religions.

However, the way in which it will be dealt with can be gleaned from the scope, which is effectively the four corners of the hearing.   The scope indicates that the Inquiry will examine these institutions on a “thematic” basis focussing on management of child protection within religious organisations and settings including the training and understanding of child sexual abuse, policies and procedures, vetting and barring, responses to allegations of child sexual abuse and internal processes for auditing, inspection and oversight of child protection practices and procedures.

What this means is the Inquiry, unlike in previous hearings, might not have any specific case studies in respect of abuse in the past and the religious institution's response.  Whilst this is understandable given how unwieldy and time consuming it would be if each institution were to be examined both specifically by reference to case studies and broadly in respect of their practices and procedures, it must not be lost sight of, however, how important those case studies are.

The reality is that many of these religious institutions will publicly abhor child abuse and denounce it as a sin.  It would be outrageous not to. We do not suggest for one minute that individuals, leaders or even the institution is not genuine when publishing such material. The problem is in the implementation.

What we do know is that no matter how loud the protest against child abuse by religious institutions, the reality of dealing with sex offenders, allegations of child abuse and internal practices are often not reflective of those public positions.

This reflects a wider problem in these institutions, which is a reluctance and often a hatred of being governed by secular laws and society.  So the Inquiry has a real chance here to dig deep into these institutions and establish which ones have outdated practices which must change, whether by external legislation or from within, and which ones do not have proper safeguarding practices.

We believe the answer will be fairly predictable - mandatory reporting is required.   This will avoid ridiculous internal policies which exist to avoid reporting child sexual abuse to secular authorities and focus on dealing with it internally.

Whether the Inquiry should go further and adopt positions such as in Victoria, Australia and recommend failure to protect laws should also be considered by the Inquiry.

In Victoria, a criminal offence was introduced in 2015 which applies where there is a substantial risk that a child under the age of 16 under the care, supervision or authority of a relevant organisation will become a victim of a sexual offence committed by an adult associated with that organisation.

A person in a position of authority in the organisation will commit the offence if they know of the risk of abuse and have the power or responsibility to reduce or remove the risk, but negligently fail to do so. 

This offence encourages organisations to actively manage the risks of sexual offences being committed against children in their care to protect them from harm.

It is our view, that given the magnitude of the problem, this is a necessary step.  There is one sure-fire guard against child sexual abuse and that is to place in a person who is in a position of authority within a relevant institution criminal responsibility for negligently failing to take steps to protect a child from a known risk of abuse.

Abuse by people in authority: what can we learn from “Emmerdale”

Sexual abuse by people in authority often involves the use of power by the predatory adult.  A teacher, of course, has often enormous influence over a pupil, but this issue is not limited to the teacher/pupil relationship. Abuse can happen in other settings where people work with young people too. It is very easy for young people to fall under that influence which is why, as we shall see, there are very strict laws prohibiting any kind of sexual activity between those in a position of trust and a young person (under the age of 18). Victims of grooming are often manipulated and what they may think is a relationship is, in fact, a twisted one, and a damaging one, that can have profound consequences.

Avid fans of the soap “Emmerdale” will be all too familiar with the current storyline of sexual impropriety between a teacher and her pupil.

Teacher Maya Stepney has been involved in an improper relationship with schoolboy Jacob Gallagher. She has been arrested and, no doubt faces being prosecuted for offences under the Sexual Offences Act 2003.

The fictional case vividly exposes a number of issues.

The first issue is young people can be exploited by adults through a process where they are manipulated into a relationship that in turn leads to sexual abuse. This manipulation is known as grooming. On the soap, Maya has been grooming  Jacob for months and even made plans to flee the country with him. Maya tried to find a way out, taking Jacob with her, but she was reported to the police and finally arrested in front of him. Viewers were stunned when they previously saw Maya, who is Jacob’s teacher, have sex with him a few days after he turned 16.

The story has also exposed a lack of understanding of a sizeable proportion of the general public who apparently struggle to identify what constitutes sexual abuse. Research done for Barnardos by YouGov revealed that many adults have a severe lack of knowledge about sexual abuse. Barnardos has been working with Emmerdale’s producers on the current storyline, but despite witnessing Maya and Jacob sexting, the poll showed that 35% of people didn’t actually think an adult sending sexually explicit messages to a 16-year-old was illegal or abusive. When Jacob was still 15, scenes played out on screen of him kissing Maya in and out of school, however, 27% of people in the poll did not identify this as illegal or abusive.

There is also the uncommon perception that a teenage boy having sex is not harmful. Indeed there will be those who think that Jacob having sex with his teacher is a boy’s fantasy come true. The reality is that it is recognised this is likely to be harmful psychologically because of the manipulation and the abuse of power. The likelihood in the Jacob scenario is that he is being used for sexual gratification or to get some kind of power kick.  He is being used unwittingly and with that, the risk is that whilst he might be physically mature he will not be psychologically, and that is where the harm is possibly going to arise.

Turning back to the law although Jacob was over the age of consent when he and Maya had sex, it is a crime for an adult in a position of trust (such as a teacher or foster carer) to engage in sexual activity with a person under the age of 18, under the Sexual Offences Act 2003.

If Maya is successfully prosecuted, she will face imprisonment. The courts take breach of trust cases very seriously.

In addition, Maya may be liable to pay compensation to Jacob for the harm she has caused him. The compensation could be significant if the damage she has caused is lifelong which is possible in cases such as this. Moreover, her employer may also be civilly liable to pay compensation if she was able to sexually abuse him as a direct result of her employment.

Sexual abuse of a minor by a person in position authority should be taken seriously by each of us and by society as a whole. Proper reporting and prosecution will not happen if people are not aware of just how damaging this kind of abuse can be. More importantly, without awareness, we will not be able to make strides toward preventing it from happening in the first place.

Adult Survivors of Childhood Sexual Abuse APPG report

The May 2019 report by the All-Party Parliamentary Group for Adult Survivors of Childhood Sexual Abuse sets out some alarming facts regarding the impact of childhood sexual abuse, access to essential services, the demand for essential services and the gap in funding which allows many survivors to languish without proper treatment or support.

At the outset it is important to note the magnitude of this problem – 7% of people aged between 16 and 59 report they were sexually abused as a child.

This tells us many things, but most importantly, the impact of childhood sexual abuse is on a scale many would never imagine and it is not a vestige of a less civilised past, which many would consider the case. This is a 2019 report with recent data. The youngest persons surveyed are 16 years old and the oldest are 59.

You would be forgiven for thinking that recent awareness of this issue and great leaps being taken in safeguarding techniques, laws and procedures would reduce the incidence of childhood sexual abuse, but this data suggests otherwise.    

So this is something that can no longer be ignored, there is a human cost and an economic cost to society.  Taking this into account, the report asks a pivotal question – can adult survivors of childhood sexual abuse access justice and support?

In doing so 365 survivors of child hood sexual abuse were surveyed and the following alarming statistics were revealed:

• The average wait time for disclosure of sexual abuse is 26 years;
• 90% of respondents told the inquiry that the abuse has negatively impacted their intimate relationships;
• 89% of respondents told the inquiry their mental health was affected by the abuse;
• 81% of respondents told the inquiry their family life was adversely affected by the abuse;
• 72% of respondents told the inquiry their career was negatively affected; and
• 65% of respondents told the inquiry their education was negatively affected by the abuse.

Whilst these results are startling at first blush, it is not at all surprising.  One only needs to search the internet for similar studies conducted across the world to see the devastating and insidious impact of childhood sexual abuse. Sexual abuse is pervasive, it invades the lives of those affected and can sit dormant for many years. We must then ask why this is the case?

It was been the position of society for decades that such things are best left unsaid, it was a secret which many institutions and organisations didn’t want let out of hiding.  The Catholic Church is a perfect example, it can now be said with some degree of certainty that this problem of epic proportions was known about, and covered up, for decades. Survivors were conditioned to feel it was their fault, to feel guilty, to hide it deep inside. This served one purpose – the protection of the institution and the abuser. Now we know this is not specific to the Catholic Church, but a problem which has touched nearly all facets of religion and government.

The effect is what we see in clear terms in the report – survivors take decades to report. This is not at all surprising given what they were conditioned to feel.

Moreover, the individual survivor disclosures in the report evidence a culture which surrounds childhood sexual abuse – often the people around you just want you to get over it.  A monumental task and one which those who haven’t been affected are ill equipped to understand.  It is this mentality which contributes to the 90% of survivors who report their intimate relationships being negatively impacted and the 81% of survivors whose family life was negatively impacted by the abuse.

Again, this is hardly surprising. The report details many survivors are unable to access good quality information about the impact of childhood sexual abuse – if the survivor is unable to access this information then how is a loved one or friend able to properly understand the devastating impact? This misunderstanding of how childhood sexual abuse pervades many aspects of a survivor’s life leads to a clear impact on relationships, a downward spiral, leading to further depression and less likely prospects of successful treatment.

This is the human cost.  It is undeniable.  But how is this treated and what can be done?  Whilst 47% of survivors found that the most important support to recovery is specialist voluntary sector counselling, the report demonstrates glaring holes in access to support and services due to a distinct lack of adequate government funding.

For example, SurvivorsUK which provides support and services for survivors has reported that in each of the past three years demand for services has increased by 30% year on year – a 90% increase – and their staff has grown by 300% but is still unable to meet demand.

So what does the report recommend to address this issue?  The key recommendations are as follows:

1. The Home Office should commission and publish research on the economic and social costs of child sexual abuse.
2. The upcoming Spending Review for 2020-2023 should create a discrete, cross-departmental strategic fund to transform Government response to child sexual abuse. This should fund core services to meet demand and recognise the value of the specialist voluntary sector.
3. NHS England should collect data on Clinical Commissioning Group (CCG) expenditure on long-term therapeutic care for survivors, and consider ring-fenced funding as a way to ensure CCGs commission specialist voluntary sector services to meet demand.
4. Government departments should issue guidance to frontline professionals on how to respond in a trauma-informed way, developed in collaboration with specialist sexual violence and abuse voluntary sector umbrella agencies.
5. The Government should fund a nationwide public health campaign to raise awareness of the issues around childhood sexual abuse, highlight the potential impact on survivors, tackle social myths and stereotypes about sexual abuse and direct survivors and professionals to sources of support and information.

Whilst this is all welcome data and impactful advocacy – the question remains, what will the government do about this?  If there is a benefit to society, this may garner more support for change and funding. Whilst an unpalatable thought, it is likely to be the best shot we have to ensure survivors of childhood sexual abuse can access appropriate service and get on the road to recovery.

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:

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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.

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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.