Views sought on lifting time bar in child abuse cases

Claims for compensation relating to alleged historic child abuse would no longer be subject to the normal three-year time bar for personal injury claims, under Scottish Government proposals put out to consultation today.

However claims going back earlier than 26 September 1964, which have been legally extinguished since 1984, will not be revived.

At present a person wishing to bring a claim in respect of injury for wrongful acts committed (and ceasing) more than three years before the action was raised, has to show cause to the court that it would be equitable to bring the claim despite the time bar (or limitation) rule. The running of time is postponed in certain circumstances, including while a person is still legally a child.

Under the new proposals there would be no need to show cause. "The law should recognise that it is the abuse which is the reason why people do not come forward until many years after the event, even where there was knowledge of what had happened", the paper states. "The Government considers that whatever factors might govern the exercise of the court’s discretion, the nature of a limitation period creates an inbuilt resistance to allowing stale claims which is not appropriate in the context of child abuse."

The law was changed in September 1984 so that a claim is no longer completely extinguished after 20 years, as was previously the case, so it would be possible to bring a claim now relating to events back to September 1964. As regards older claims, however, which have now been extinguished for at least 30 years, ministers have concluded that the legal issues, including human rights concerns, have proved too difficult to overcome.

Ministers had earlier considered extending the limitation period for all personal injury actions from three to five years, and increasing the range of factors that a court can consider when asked to waive the time bar. However they are now of the view "that the unique position of survivors of historic child abuse merits a different approach to application of the limitation regime".

In addition to the merits of the main proposal, the consultation paper seeks views on the definition of a child; the settings to which the change in the law should apply; and the types of abuse which should be covered.

It is proposed that for the purposes of time-bar legislation a child should be defined as someone who has not attained the age of 18, although for other purposes a person is now an adult at 16. "Abuse" should cover physical, sexual, emotional or psychological abuse, unacceptable practices and neglect. However, the intention is that any change in the law should be confined to abuse in "care” settings other than the family home, though a further question asks whether the new rule should be extended to all children.

The paper however warns that the rule change would not necessarily enable all cases to proceed. "Modifying the law will remove the barrier of time-bar, but this does not resolve the underlying issue that in many cases the availability or quality of the evidence may be insufficient to enable [pursuers] to prove their case. Therefore legal aid funding may still be refused on the grounds that there are limited prospects of success due to a lack of evidence or witnesses", it points out.

Minister for Community Safety and Legal Affairs Paul Wheelhouse, launching the consultation, stated: "For survivors, time bar is a significant hurdle which can deny them access to justice and can place added stress on people who are already living with the consequences of the abuse they have suffered.

“Those who have experienced violent and sexual abuse as a child should not have to demonstrate to the court that they have a right to raise litigation before their case can proceed. While the court has some discretion on waiving time bar, the experience of many survivors suggests this is not sufficient to allow them to pursue their abusers and forces them to have to go through recall of traumatic events simply to exercise their rights to a civil action. The circumstances of survivors of historic abuse, in particular, as well as the class of pursuer, the type of injury and the impact on the victim are such that they should have a right to bring a civil action for damages whether or not the three-year limitation period has expired."

He added: “As a further demonstration of our clear intent and commitment to this issue we will also publish a draft bill, informed by the responses to this consultation, before the end of this parliamentary session.”

Click here to view the consultation. The deadline for responses is 18 September 2015.