A Consultation on the proposal to establish a National Confidential Forum - Analysis of Consultation Responses

ANALYSIS OF RESPONSES TO THE CONSULTATION QUESTIONS

36. The consultation document sets out ten questions for respondents to consider in relation to the purpose and operation of the National Confidential Forum.

37. The following section of this report deals with each of the consultation questions in turn, including both a quantitative and qualitative analysis of responses. Questions four and six have been taken together as they deal with the same matter, namely the scope of eligibility to participate in the National Confidential Forum.

Q1: Do you agree or disagree with the purpose of a National Confidential Forum?

38. A very high proportion of respondents agreed with the proposed purpose of the National Confidential Forum, namely that it provide acknowledgement.^[17] No respondent disagreed with the purpose proposed for the Forum. This general position was reinforced at each of the consultation events, with widespread agreement in relation to the proposed focus of the National Confidential Forum on acknowledgement.

39. Several respondents specifically expressed the view that, providing an opportunity for people who have been placed in residential care as children to be heard and acknowledged in a confidential, non-judgemental setting, would be beneficial to their health and wellbeing. This view was expressed in different ways by respondents. For example, Drew Smith MSP said he supported "the creation of a National Confidential Forum… It is my view that talking about past abuse can be helpful for many survivors." The Care Inspectorate also said that "we agree with the purpose of a National Confidential Forum. The Pilot has clearly borne out the hypothesis that giving adults, who had been in residential care as children the chance to describe their experiences, is of benefit to them. Of particular note is the finding that taking part in the Forum led to improvements in their health and wellbeing."

40. The view was also expressed by several respondents that the establishment of the National Confidential Forum provided an important opportunity to learn from the past experiences of children placed in residential care to make improvements for the protection of children in care currently and in the future. For example, Angus Council said that "the opportunity for adult survivors to describe their experiences and have their views listened to can only help to inform improvements; not only for the health, safety and wellbeing of children and young people who are currently in residential care but also children in the future who require this type of care." The City of Edinburgh Council echoed this view in stating that "beyond the importance to adults who spent time in residential care as a child having an opportunity to share their experiences in a National Forum, there is an opportunity for such experiences to feed into and shape the ongoing future development of residential care… hearing about the views and experiences of former residents will provide a valuable insight into how services can meet needs."

41. Five organisations and three individuals who responded to the consultation indicated that the National Confidential Forum should be viewed as part of a bigger picture. For example, In Care Abuse Survivors Scotland expressed the view that the Forum should be regarded "as part of a range of measures being considered by the Scottish Government and the Scottish Human Rights Commission". The SHRC itself observed that the "Forum should operate alongside a range of other options for justice and remedies for survivors of childhood abuse". The Convention of Scottish Local Authorities ("CoSLA") commented that the links between the National Confidential Forum and "restorative justice mechanisms warrant further exploration" and that connections between the Forum and the "criminal justice system needed to be maintained under very carefully defined conditions".

42. The Scottish Government recognises that the establishment of the National Confidential Forum is part of a suite of responses to people placed in care as children, including survivors of abuse. That is why the creation of the National Confidential Forum forms part of the wider SurvivorScotland Strategy which the Scottish Government launched in 2005. The Strategy has a number of different elements, including the provision of funding to organisations which provide support to survivors of abuse. The Scottish Government has also agreed to take part in the InterAction process to develop an action plan for taking forward the recommendations in the SHRC Framework.

43. The Scottish Government is committed to establishing a National Confidential Forum because of the benefits of an independent acknowledgement forum to people placed in residential care as children, including survivors of abuse. The opportunity to describe experiences of care, including of abuse, in confidence and without challenge or judgement was demonstrated to be of positive benefit to participants of TTBH.

44. The Chair and Commissioners of TTBH considered it important to have a forum with a sole focus on acknowledgement which, in particular, did not combine accountability with acknowledgement. The Chair of TTBH summed this up in evidence to the Petitions Committee:-

"..on a combination of acknowledgement and accountability in one, I would say that that is impossible if we want to have the beneficial outcomes of the confidential hearing committee. If we introduce an investigative or accountability dimension, we instantly introduce an adversarial element into the forum, which would prevent a number of the people from whom we heard from coming forward to be heard. Those people do not want to be challenged and disbelieved again; it is sufficiently traumatic for them to come back, remember the experience and recount it to people such as us."^[18]

45. The Scottish Government's response to the SHRC Framework echoes this position, recognising the importance that participants in TTBH attached to the confidential nature of the process and the supportive approach taken in what were non-legal, informal proceedings. In this response, the Scottish Government highlighted that "introducing an investigatory requirement would undoubtedly change the nature of the process in significant ways. First, the institutions would need to be given the opportunity to present their account and to be parties to the process. Second, the survivors' accounts would have to be open to challenge, either by the institutions (drawing on an adversarial model) or by the Chair and Commissioners. Third, the proceedings themselves would need to be reframed to reflect elements of a legal, or certainly a formal, process, including legal representation and some form of adjudication."^[19]

Q2: Do you agree or disagree that the National Confidential Forum should operate independently of Government?

46. A very high proportion of respondents agreed that the National Confidential Forum should operate independently of Government. ^[20]

47. Three quarters of these respondents expressed the view that to ensure the confidence and trust of potential participants, the National Confidential Forum should be independent of Government. For example, Dumfries and Galloway Council said that it "is imperative that the Forum should operate independently from Government to ensure that ex-residents feel that the process is independent and transparent. If the Forum is not independent from Government there is a risk that ex residents may view this negatively as an organisation being overseen by the state that made the original care placements". In contrast, however, another local authority respondent expressed the view that the Forum should be "owned" by the Scottish Government, because it would be "within the sight of the Scottish Ministers".

48. A significant number of attendees at the consultation events also expressed the view that the Forum should operate independently of the Scottish Government. However, several also indicated that the Forum should be answerable to the Scottish Government, for example, by means of annual reporting to the Scottish Ministers.

Q3: Should the National Confidential Forum be (a) integrated into another public body or (b) be a separate unit with another public body?

49. A small minority of respondents agreed that the National Confidential Forum should be integrated into another public body.^[21] The benefits of this approach were identified by those respondents as relating to the cost savings involved in sharing administrative and organisational functions.

50. Of the respondents who did not agree with this approach, several emphasised the importance of the National Confidential Forum having its own identity and independence to ensure that there were no conflicts of interest and that the needs of participants were the priority.

51. Two fifths of respondents agreed that the National Confidential Forum should be a separate unit within another public body.^[22]

52. Several respondents stressed the need for independence for the National Confidential Forum, both from the Scottish Government and from existing public bodies. For example, in its response, CoSLA said that "without wanting to prejudge any best value process, it would be sensible to develop the NCF as a separate unit within an existing public body, thereby securing the requisite resource and support but retaining independent governance arrangements." The Centre for Excellence for Looked After Children said that "if the Forum needs to be linked to another public body, it is important that its independence is recognised by it being a separate unit. It will also be important that clear and transparent governance arrangements are in place to underline the Forum's independence."

53. Four respondents specifically identified a public body within which the National Confidential Forum could operate as a separate unit. Two respondents proposed the Scottish Human Rights Commission; one respondent proposed the Mental Welfare Commission for Scotland; and another respondent, proposed the Centre for Excellence for Looked After Children in Scotland.

54. In line with the Scottish Government's commitment not to create any new public bodies, and feedback from respondents as to how the National Confidential Forum should operate, it is proposed that the Forum be established as a separate unit within an existing public body.

Q4: Do you agree or disagree that all adults who were placed in residential care by the state should be eligible to take part in the National Confidential Forum?

55. A very high proportion of respondents agreed that all adults who were placed in residential care by the state should be eligible to take part in the National Confidential Forum^[23].

56. Several respondents to the consultation asked whether it was be necessary for people to have been placed in residential care by the state to participate in the National Confidential Forum, as there are many cases of children having been placed in care under private arrangements with no state involvement.

57. The Scottish Government has considered this point in the context of the proposed role and functions of the National Confidential Forum. For the purposes of participation in a confidential committee, it is not necessary to make a distinction on the basis of the source of the placement of a child in residential care. The Scottish Government also considers it important that the opportunity of acknowledgement be extended to all persons placed in residential care, irrespective of whether they were placed there by the state or their family. This is particularly important given the significant changes to the law, policy and practice relating to the care of children over the time period during which participants in the Forum will have been placed in care.

58. The Scottish Government, therefore, proposes that the National Confidential Forum be open to people placed in care by the state and people placed in care under private arrangements.

Q6: Do you agree or disagree that people who were in the following types of residential care should be included:

• residential schools and children's homes;
• residential educational provision for children with special needs;
• long-stay hospital provision for children with acute medical and/or mental health needs; and
• secure accommodation.

59. A very high proportion of respondents agreed that the types of residential care listed in question six should be included within the scope of the National Confidential Forum.^[24]

60. In addition to agreeing that the National Confidential Forum should be open to the types of care listed in question six, a minority of respondents (nine) proposed that the scope of the Forum encompass all categories of care. Two of these responses came from individual survivors. This view was articulated by respondents in different ways, for example, that "all survivors of the care system" be included; that adults "looked after away from home" be included; that "all looked after children [be] included" and that "all children placed in the care of others for whatever reason" be included. Some of these responses do, however, include some form of restriction. For example, that placements should have been "arranged and managed by the local authority" or with "social work involvement" or that persons be "survivors" of abuse within care.

61. In addition to agreeing that the National Confidential Forum should be open to the types of care listed in question six, a further minority of respondents (ten) made a specific reference to foster care being included within the scope of the Forum. None of these responses came from individual survivors. Half of these respondents simply indicated that foster care be considered in defining the scope of the Forum, with one respondent suggesting that foster care "may have to be considered" and another suggesting that there may be a "second phase" which encompasses foster care.

62. Where a reason was given by respondents for proposing that foster care be considered for inclusion within the scope of the National Confidential Forum, this was based on the view that there is abuse within foster care and, as such, people placed in foster care and who have experienced abuse should be able to participate in the Forum.

63. The Scottish Government has considered in depth the matter of eligibility to participate in the National Confidential Forum and has fully taken into account the views expressed in the consultation process.

64. The Scottish Government proposes that the principal criteria for participating in the National Confidential Forum will be the experience of having been placed in institutional care as a child, which may include abuse and neglect. It will be that experience which will be the starting point for determining eligibility to participate in the Forum.

65. It is intended that the scope of the National Confidential Forum will include all forms of institutional care into which children can be placed, including long stay hospitals and secure units. It is not intended that this will include foster care, kinship care or supervision at home. In doing so, the National Confidential Forum will follow the approach of confidential committee models in other jurisdictions, including the proposed scope of the Acknowledgement Forum in Northern Ireland.

66. The scope of the National Confidential Forum is intended to be wider than that of TTBH (which was open to residents of only one institution), but also to be a natural progression from the Pilot Forum based on learning from that experience. The definition of the scope of the National Confidential Forum is, therefore, based on positive evidence that the confidential committee model works for people placed in institutional forms of care as children. As such, the opportunity of acknowledgement offered by TTBH will be extended to all adults placed in institutional care as children.

67. The rationale for the focus of the National Confidential Forum on institutional care is also based on the distinct development and characteristics of institutional forms of care, particularly care provided on an historical basis. The historical development and particular characteristics of institutional care have significant implications for the establishment, scope and participation of people in the National Confidential Forum. In particular, there are specific implications for people seeking to recount experiences of abuse when that abuse has been perpetrated in the context of institutional care.

68. In the UK there has been an historical division between the development of residential and institutional forms of child care, on one hand, and the development of foster care, on the other. It is considered that this historical distinction has significant ramifications which continue to today, to the extent that they "provide the compass bearings or coordinates for current assumptions, worldviews, policies and practice" and that whatever these "alternative" forms of child care "have in common - seen from the child's, or family's, perspective - they are seen as opposites".^[25]

69. The distinct history and characteristics of institutional care were evident throughout the range of testimonies given by people who participated in TTBH. These testimonies starkly illustrate the often long term implications of institutionalisation, both for people who had experienced abuse and those who have not. The TTBH Report notes, for example, that "many of the residents from Quarriers did not have a sense of their own personal identity. There was a sense that when they went into Quarriers they stopped having their own families; some would not know what they had siblings within the same care system and sadly relationships with parents or extended family, where appropriate, were often absent if not actively discouraged. Many of the participants described never feeling that they had any sense of being comforted or cared for by the house parents."^[26] The Report goes on to state that the location and self-sufficient nature of Quarrier's Village made transition difficult. Leaving Quarriers was described by participants in TTBH as "like coming out of jail"; "like coming off the moon"; and "the most frightening experience". As such, it was found that "leaving the 'cocoon' of Quarriers was difficult both for those who had good and bad experiences."^[27]

70. The experiences and effects of institutionalised child care would appear to compound the harm caused by abuse. A literature review on resilience and institutional abuse, commissioned by the Scottish Government and published in 2012, found that there are circumstantial aspects of institutional child abuse which can "instil a universal distrust of institutions and those in authority"^[28]. The "Uncertain Legacies" Report highlights the implications of the distinctive public dimension to the disclosure of institutional child abuse, including the increased challenge of maintaining privacy. This has implications both for those who disclose abuse and fellow residents, leading to what might be perceived as forced disclosure; claims of abuse being more closely evaluated by public bodies and institutions; and resultant investigations and court cases being given prominent media coverage.

71. In particular, the Uncertain Legacies Report highlights the "specific dangers in revealing institutional child abuse if the abuse occurred in a respected institution or was inflicted by highly regarded individuals", where disclosure may spark accusations of fabrication or explicit community hostility, reinforced by institutional re-traumatisation if claims are met with disbelief by public bodies such as the police or criminal justice services. It is not surprising that the Report found that the circumstantial aspects of institutional child abuse might complicate recovery trajectories and hamper the development of resilience in adult survivors.

72. The TTBH Commissioners had expertise in, and a focus on, the particular history and nature of institutional child care. This enabled an informed and sensitive approach to hearings and the analysis of what was heard, including but not limited to abuse. In order to fulfil its purpose and function effectively, the Scottish Government considers it important that the National Confidential Forum similarly has the expertise and focus to respond effectively to the particular experiences, and the particular implications of those experiences, of people placed in institutional forms of care as children.

Q5: Do you agree or disagree that the process should be the same for all participants, regardless or whether they regard themselves as survivors of abuse in residential care?

73. A high proportion of respondents agreed that the process in the National Confidential Forum should be the same for all participants, regardless of whether they consider themselves to be survivors of abuse or whether they intend to disclose abuse^[29].

74. In its response to the consultation, CELCIS agreed with the purpose of the National Confidential Forum and, as such, does not think that there is any justification for taking a different approach to persons who have positive experiences of care. CELCIS response highlights feedback from some participants in TTBH who considered that there was too much of an emphasis on historic abuse and that they had come forward precisely so that they could counter this and report their positive experience of the placement in Quarriers. CELCIS, therefore, considers that "it is important that the National Confidential Forum should hear a balanced range of testimony from adults who have experienced care as children".

75. Two respondents expressed the view that the National Confidential Forum should be as flexible as possible in offering all participants the opportunity to recount their experiences. Renfrewshire Council expressed the view that it would "not be helpful to have separate processes dependent on whether [participants] regard themselves as survivors or indeed champions of care. For many, their experiences may have been mixed. We believe that as much flexibility as possible should be provided to all who wish to participate in relation to facilitating their statement. This should take account of trauma, literacy levels, disability etc." The City of Edinburgh Council in its response suggested that "consideration should be given to creating a flexible process focused upon enabling contributions from individuals and not a process which discourages participation".

76. Four respondents did, however, express the view that people who wished to recount wholly positive experiences of being in care as children could provide an oral or written statement to the National Confidential Forum, rather than participating in a full hearing. Further, three respondents expressed the view that that those who had suffered childhood abuse should be given priority in terms of participation in the National Confidential Forum. In its response, Open Secret commented that "survivors of abuse in care will require additional intensive support to go through the process. Priority should be given to those abused in care." South Lanarkshire Council also observed that "the needs of survivors may need to take priority in terms of time and resources. It would not be helpful to divert or dilute opportunities for the survivors to be heard. Some prioritisation would possibly be required."

77. The Scottish Government proposes that the experiences which the National Confidential Forum will hear will be all those of being placed in institutional care as a child, both positive and negative. It is considered that restricting the Forum solely to hearing about experiences of abuse would not give a balanced view of institutional child care and could inadvertently affirm inaccurate portrayals of institutional care. The National Confidential Forum will have an important role in presenting a balanced picture of institutional care, a picture which has changed significantly over the last century. As one public sector respondent to the consultation noted: "While recognising the current strategic emphasis upon methods of earlier intervention and community based family support, there will continue to be a need for residential services…. A report from the National Confidential Forum may consider whether it wishes to stimulate a public debate as to the nature of public care and what it should look like in the 21^st century."

78. In addition, not all people who have experienced abuse in care necessarily identify themselves as either 'victims' or 'survivors' and may be deterred from considering participation in the National Confidential Forum if it held out as being, or even perceived to be, only open to people who consider themselves to be a victim or a survivor . As the Scottish Government's response^[30] to the SHRC Framework states:-

"Identity is a key issue for many survivors of abuse in care and also for former residents generally. Some people who were in care as children do not identify themselves as 'survivors' in spite of the fact that they describe harsh treatment that others would consider abusive. The TTBH Report confirms this and considers the fact that the Pilot Forum was open to any former resident to describe their experiences, regardless of whether they saw themselves as having experienced abuse. We, therefore note, Recommendation 9 in the TTBH Report that an 'open approach' be adopted in a nation-wide programme of confidential hearings."

79. The Scottish Government recognises that many participants in the National Confidential Forum will wish to recount experiences of abuse. The Scottish Government also recognises that the Forum will hear instances of good practice and high standards of care, including from survivors. It is, therefore, proposed that the Forum be open to all persons, irrespective of whether they consider themselves to be survivors of abuse or not, and that the process followed in hearings be the same for all participants.

Q7: What other support do you consider that participants would benefit from before, during and after the Forum?

80. The general view expressed in consultation responses was that support was required for participants and their carers and family members before, during and after participation in the National Confidential Forum. Forty five respondents (88%) made suggestions as to the range and types of support they considered would be helpful to participants in the Forum.

81. Four respondents specifically mentioned using the model of support provided during TTBH. Two respondents indicated that In Care Survivors Service Scotland or a similar specialist agency should provide support to participants in the National Confidential Forum. A small number of attendees at the consultation events also suggested that support should be provided by In Care Survivors Service Scotland, although it was suggested there be signposting to other agencies also. At one of the consultation events, one attendee suggested that an information briefing be sent to all support providers once the Forum was established.

82. Responses to the consultation, and views expressed at consultation events, suggest that there should be personal choice in accessing support. One organisation, for example, commented that in line with the principles of person-centred care and self directed support, it would be inappropriate to restrict support options to those of a single organisation.

83. More specifically, responses to the consultation, and from the consultation events, highlighted that support should be provided incorporating the following elements:-

• appropriately qualified, trauma trained counsellors;
• clear ethical boundaries, using evidence-based interventions, to foster long term recovery and increase resilience and well being;
• clear governance and accountability arrangements in place including an ethical framework; and
• a good understanding of the Forum and its purpose.

84. In terms of understanding the process in advance of participation in the National Confidential Forum, several respondents suggested that a comprehensive information pack be given to all people considering participation. It was suggested that this could cover the Forum process and purpose; support available; sources of legal advice; the rights and responsibilities of all persons involved in the Forum; a query/complaints system and named contacts rather than a generic telephone number or e-mail address. An attendee at one of the consultation events suggested that a DVD explaining the process involved in participation in the Forum would be helpful.

85. In terms of support during and after participation in the National Confidential Forum, several respondents indicated that this should include counselling, advocacy, mental health services, and support from clinical psychologists. It was also suggested that there be access to therapeutic services, practical support and legal advice. Specifically, it was suggested by one respondent that interpretation services should be made available for deaf and deaf blind participants and for people for whom English is not their first language.

86. Several respondents to the consultation, and attendees at the consultation events, expressed the view that support should be available to participants to access their records. One respondent suggested that a member of staff from the Forum team (not the panel) should be available specifically to provide support in this regard. Two responses to the consultation suggested that there should be access to restorative justice, but one organisation advised against the use of restorative justice.

87. An important point raised at consultation events, was the issue of vicarious trauma and the need for particular support for the National Confidential Forum panel members and staff employed to support the work of the Forum.

Q8: Do you think that the participants should be protected from legal action in connection with their work for the Forum?

88. Over half of respondents to the consultation agreed that people engaged with the National Confidential Forum should be protected from any form of legal action.^[31]

89. Several respondents expressed the view that, in order for participants in the National Confidential Forum to feel comfortable and willing to recount their experiences, they should be protected and feel able to do so without fear of legal action, for example, action for defamation as a result of making claims of abuse. Several respondents also expressed the view that members and staff of the National Confidential Forum should also be protected from possible legal action in undertaking the work of the Forum.

90. The protection from legal action of participants in, and members and staff of, the National Confidential Forum was discussed at the consultation events. Many attendees agreed that there should be protections put in place for participants in particular, but also members of the Forum and staff. It was considered that this would enable participation, particularly if people were able to be assured in advance of participation that what they said during hearings would remain confidential and not be the subject of any legal action.

91. Several respondents expressed the view that there had to be clarity with participants as to the parameters of confidentiality, in particular how allegations of criminal acts made during hearings would be treated.

92. The Scottish Government intends to respond to the concerns of stakeholders, in particular survivors of abuse, and offer a high level of protection against action for defamation to participants in the National Confidential Forum. Protection against action for defamation will also be extended to Forum members and staff in order that they can carry out the work of the Forum in good faith without fear of legal action. The establishment of the Forum in primary legislation will enable such protections to be put in place.

Q9: Do you think there are any barriers that would prevent people who are eligible to take part in the Forum from participating?

93. A high proportion of respondents to the consultation agreed that there were barriers which could prevent people from taking part in the National Confidential Forum.^[32]

94. Respondents provided a range of different comments as to the barriers which they considered might inhibit or even prevent participation in the Forum. This included: concerns over confidentiality; potential re-traumatisation; risks to the mental health of participants; and accessing appropriate support. Other respondents said that feelings of mistrust; a lack of awareness that the Forum exists; a fear of not being believed; and not knowing what will happen with their testimony could also dissuade potential participants from coming forward.

95. The Scottish Government is concerned that all persons eligible to participate in the National Confidential Forum should be able to do so, fully and without facing barriers to that participation. It is considered important that participation in the Forum be a matter of free, informed choice. As such, the Scottish Government will be working with all stakeholders to ensure that any barriers which may prevent access to, and participation in, the Forum are identified and dismantled and that information is available to ensure that the choice to participate is supported and informed.

Q10: Do you wish to add any additional points about the Forum?

96. A range of different additional points where made by almost half of respondents to the consultation. These points included:-

• The importance of the continued engagement of the Scottish Government in the human rights InterAction.
• The need for specialist counselling services to be in place for people, particularly after participation in the National Confidential Forum.
• A suggestion that the National Confidential Forum should hold hearings in different geographic locations to facilitate access.
• That the relationship between the National Confidential Forum and the state to investigate and prosecute be clarified during the passage of the Bill to establish the Forum.
• A suggestion that any public documents produced by the National Confidential Forum with participants' input be anonymised so that participants cannot be identified. A related suggestion made by an attendee at the Glasgow consultation event was that participants might be identified by a unique reference code which only they would know.
• That, while there may be barriers that would prevent people from taking part in the Forum, there would also be many positives for them if they do participate.