Faculty warns against abuse scheme "survivor hierarchy"

A warning against creating a “survivor hierarchy” with the scheme to compensate victims of historical child abuse in care has been sounded by the Faculty of Advocates.

In its response to the Scottish Government's pre-legislative consultation on its proposed scheme for financial redress, Faculty believes it would be unfair to exclude children abused while in hospital or at boarding school.

It notes that the proposed definition of "children in care" is less wide than that adopted by the Scottish Child Abuse Inquiry, by focusing on bodies having "long term responsibility for the care of the child in place of the parent". Its response comments:

"As the consultation itself recognises, such a restriction would exclude children who for example attended fee-paying boarding schools and those in long term care at hospital for medical or surgical treatment… To exclude such children from the scheme and require them to seek reparation through other legal processes is unfair.

"It would compromise the survivor-orientated approach to redressing historical child abuse while in care, and create a ‘survivor hierarchy’ wherein only some survivors of abuse in residential care are provided with redress under the scheme."

Faculty however supports the guiding principles of the scheme, subject to "fairness" including the importance of properly managing expectations, by making the pre-application information to potential applicants clear as to what is likely to be required prior to any payments under the scheme.

It adds: "The scheme should be administered in a consistent, fair and transparent way to ensure its integrity and effectiveness… The processing of applications should proceed without unnecessary delay and applicants should be given realistic time frames for the likely processing of their applications… There should be a mechanism for review if the applicant disagrees with the level of financial redress awarded”.

However it questions the rationale for the proposed date of 1 December 2004 in defining "historical" abuse; and as regards the intention that entities bearing responsibility for the abuse should contribute to the costs of redress, it warns that an entity should be able to rely on any legal defences that it might have. "Otherwise it may be penalised for a wrong that it is not responsible for. This would potentially engage the entity’s Article 1 Protocol 1 rights."

That should apply even though the scheme may become more complex, legalistic and slower than was envisaged, and possibly deter potential applicants if entities can challenge whether the abuse actually happened.

"A way to avoid these problems would be by providing that entities only have to contribute where (i) they voluntarily accept responsibility, or (ii) their liability has been or is subsequently established in litigation", Faculty states, drawing a comparison with the scheme for recovering from wrongdoers, social security benefits paid to their victims.

Faculty believes the scope of redress should be equally for the abuse suffered and the resulting impact on the individual applicant, with each case treated on its merits. But also "very important" is the need for a dedicated support service for in-care survivors once the financial redress scheme is in place. "That help should not only be practical but also emotional and, where the need arises, help with medical treatment by way of offering specialist psychological services and therapies."

Click here to view the full response.