Julie Taberer, Senior Associate for AO Advocates comments below.
The Independent Inquiry into Child Sexual Abuse (IICSA) has just published its Investigation Report on Accountability and Reparations. We are delighted that this authoritative body has made important recommendations to help survivors of child sexual abuse, which in our view are long overdue.
This strand of the Inquiry was set up to look at whether the current legal process and support services for survivors/survivors of childhood sexual abuse are fit for purpose. Hearings in 2018 and 2019 heard from survivors, their lawyers and defendant representatives. In five case studies, survivors spoke of the abuse they experienced, in some instances dating back to the 1960’s, and its lasting impact.
The report makes the important point that as far as survivors are concerned, effective reparations for child sexual abuse can take different forms, including punishment of the offender, holding institutions to account, receiving an apology or acknowledgement the abuse took place, receiving an assurance that serious steps have been taken to prevent a recurrence, and redress in the form of financial compensation and support.
The Report makes several recommendations, two of which we consider the most far-reaching. One is a review of the amount of compensation survivors can receive under the Judicial College Guidelines used by all courts to set damages in personal injury cases; the other is a recommendation to change to the Rehabilitation Code to make sure survivors get psychiatric support more quickly.
The simple fact is that damages paid to survivors by institutions that failed to protect them as children against abusers have always been far too low in the UK. They just do not adequately compensate for the intensely traumatic, persistent harm survivors endure. Our firm is international, handling cases of sexual abuse both in the UK and the US. American victims receive awards that are typically at least ten times what British victims receive for the same severity of abuse. There are many contributing factors, but the main one is that British courts severely discount “pain and suffering” damages, which US courts recognise as real and significant, as somehow suspect. The Judicial College Guidelines limit pain and suffering damage for psychiatric injuries to a maximum of £101,470.00, and very seldom award the maximum anyway. To receive substantial compensation, British survivors must instead demonstrate clearly that the abuse hurt their earnings over their lifetime, and for a child abused at age 8 or 13 or 16, the exercise is often so speculative to be a nonsense. We see from our clients how tiny the awards are compared to their needs for counseling and, frankly, the fundamentals of justice. In America juries and judges can also award punitive damages too, if institutions are persistently hazardous to children, something that almost never happens here.
So, it is very welcome that the Report recommends that the Judicial College should include a new section in its Guidelines covering damages for childhood sexual abuse. A specific section will allow for better assessment of damages and also better reflect their full scope. The report suggests that the new Guidelines should assess the nature and severity of the abuse itself, the short-term and long-term physical, emotional, psychological and psychiatric injuries as well as the general effect of the abuse on the victim survivor’s capacity to function throughout their life. That may include the ability to maintain personal and sexual relationships as well as the impact on their education and employment. If this comes to pass, survivors of child sex abuse should find the legal system is much better attuned to the nature and extent of the harm they have suffered and receive damages that reflect this.
One of my own personal bugbears is that many of my clients need psychological and psychiatric support in excess of that the NHS is able to offer them, and they need it as early in the claims process as possible. The sexual abuse itself causes them mental suffering and getting up the courage to make a claim can cause them to relive the abuse. Support and treatment are so desperately needed to help them navigate the legal process. Having previous experience of working in serious and catastrophic personal injury cases, I know what a godsend the Rehabilitation Code can be for clients who need additional input and support. It tasks both claimant and defendant lawyers with assessing the needs of a personal injury victim at the outset and encourages defendants to pay towards rehabilitation immediately, which is best for the victim and saves money for defendants in the long run.
Whilst we at AO Advocates work hard to employ the current Rehabilitation Code for childhood abuse clients, it is not completely fit for purpose and pleas to Defendants to pay for psychiatric support at the beginning stages of a case are usually rejected. I am therefore very pleased that IICSA have recognised this failing and have tasked the International Underwriting Association of London to take the lead in producing a suitable code for child sex abuse survivors. We hope this happens quickly. It will be a huge step forward for the care of our clients.
Nothing the law provides can ever fully compensate a survivor of child sexual abuse for the misery no one had a right to inflict on to them. But survivors’ courage in coming forward to IICSA, and the good judgment being shown by the Inquiry panel, means that at long last, a comprehensive blueprint may be emerging for a legal system truly adapted to the needs of survivors.