Financial redress for historical child abuse in care: consultation analysis

3. Purpose and principles (Q1–Q2)

3.1 In advance of questions about the detailed design of the proposed statutory financial redress scheme, the consultation paper discussed the overarching purpose and principles of the scheme. Section 1.1 included two questions on these high-level themes which sought to gather views on the proposed wording of the purpose of the scheme and its guiding principles.

Question 1: We are considering the following wording to describe the purpose of financial redress: ‘to acknowledge and respond to the harm that was done to children who were abused in care in the past in residential settings in Scotland where institutions and bodies had long-term responsibility for the care of the child in place of the parent’. What are your thoughts on this? Do you agree? [Yes / No]

If no, what are your thoughts on purpose?

Question 2: We are considering the following as guiding principles:

• To ensure that redress is delivered with honesty, decency, trust and integrity
• To make the scheme as accessible as possible
• To treat applicants with fairness and respect and to offer them choice wherever possible
• To ensure that the assessment and award process is robust and credible
• To make every effort to minimise the potential for further harm through the process of applying for redress.

Do you agree with these guiding principles? [Yes / No / Unsure]

Would you suggest any additions or amendments to the proposed principles?

Around 9 out of 10 respondents (88%) agreed with the proposed wording of the purpose of the scheme, although agreement was considerably higher among individuals (93%) than organisations (60%).Key points

• Those who disagreed with the proposed wording often took issue with the reference to institutions and bodies having ‘long-term responsibility for the care of the child in place of the parent’ as it was felt this might unfairly exclude those who had been abused in the course of short-term placements or care, or in settings such as hospitals or fee-paying boarding schools.
• Most of those who agreed with the wording used their comments to welcome the overall intention or specific aspects of the proposed scheme, such as the acknowledgement of harm caused, the opportunity to give a voice to victims / survivors, the signal that institutions would be held accountable for past failings or the indication that steps would be taken to prevent such abuse in the future. However, some respondents who agreed with the wording also offered comments and suggestions on wording and definitions. Again, these often reflected concern about the potential exclusion of those abused in the course of short-term placements or in specific types of residential settings.
• There was also a wider concern about issues of definition, particularly among organisational respondents, and there were calls for greater alignment between the proposed purpose and the wording used in the Limitation (Childhood Abuse) (Scotland) Act 2017.
• The guiding principles proposed for the redress scheme were widely supported (by 94% of all respondents), although some additional principles – such as transparency or timeliness – were also proposed.
• Some organisational respondents noted that the guiding principles were geared towards the needs and interests of individual claimants and suggested that the principles should be extended to cover all aspects of the operation of the scheme.
• Others were concerned that aspects of the proposed wording – such as the reference to robustness – might imply a standard of proof that would be difficult or impossible for some claimants to meet, or imply an assessment process that might be distressing or retraumatising for those involved.

Purpose (Q1)

3.2 The Scottish Government is considering the following wording to outline the purpose of financial redress: ‘to acknowledge and respond to the harm that was done to children who were abused in care in the past in residential settings in Scotland where institutions and bodies had long-term responsibility for the care of the child in place of the parent’. Question 1 asked for views on this.

3.3 Table 3.1 shows that around 9 out of 10 of all respondents (88%) agreed with this proposed wording, but that the figure was markedly higher for individual compared to organisational respondents (93% vs 60%). Although the numbers involved are small, it is worth noting that agreement was especially low among legal sector organisations, with only one out of five agreeing with the proposed wording.

Table 3.1: Q1 – Do you agree with the proposed wording to describe the purpose of financial redress?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authority / public sector partnerships	7	64%	4	36%	11	100%
Other public sector organisations	3	60%	2	40%	5	100%
Current or previous care providers	6	67%	3	33%	9	100%
Third sector, including survivor groups	5	71%	2	29%	7	100%
Legal sector organisations	1	20%	4	80%	5	100%
Other organisational respondents	2	67%	1	33%	3	100%
Total organisations	25	60%	16	40%	40	100%
Individual respondents	203	93%	16	7%	219	100%
Total (organisations and individuals)	227	88%	32	12%	259	100%

3.4 In total, 133 respondents (94 individuals and 39 organisations) provided additional comment. Although the follow-up question was aimed at those answering ‘no’ to the closed question, additional comment was also provided by some respondents who indicated that they agreed with the proposed wording.

3.5 The most common single theme in the comments from those disagreeing with the proposed purpose was an objection to the reference to institutions and bodies having ‘long-term responsibility for the care of the child in place of the parent’. Some respondents were simply concerned that ‘long-term’ was not defined and proposed that it should be as part of the statement of purpose. Most, however, objected in principle to the idea that the scope of the scheme should be limited in this way, arguing that it would unfairly exclude those who had experienced abuse in the course of short-term placements or care. Some respondents proposed specific wording changes in this context – for example, the deletion of the terms ‘long-term’ or ‘in residential settings’.

3.6 One other fundamental issue of scope was raised less often, namely that the scheme should not be limited to formal care settings and should include, for example, children abused within fee-paying boarding schools.

3.7 These specific issues – relating to ‘long-term responsibility’ and care settings – were also raised, and are discussed further, in relation to subsequent questions on eligibility for the proposed scheme (see Questions 3 to 7).

3.8 The other main comments from those disagreeing with the proposed wording fell into two main groups. First, there were those (especially among individual respondents) who indicated that the culpability and previous failings of state institutions and actors should be explicitly acknowledged in the wording of the purpose of the scheme. Secondly, some individual respondents argued that the proposed wording was overly focused on the harm experienced in the past and should clearly recognise the long-term, lasting or ongoing consequences of abuse.

3.9 Other views on the purpose of the scheme were expressed by smaller numbers of respondents. For example, some proposed that the purpose of the scheme should be to:

• Respond to but not to acknowledge the harm caused as other forums already established by the Scottish Government as part of its holistic response to historical abuse are better placed to achieve the latter
• Acknowledge the fact that the abuse experienced was a breach of victim / survivors’ human rights
• Provide compensation for material and non-material harms.

3.10 Some who disagreed with the proposed wording suggested specific amendments. For example, it was suggested that the wording of the purpose was too long and a condensed alternative was proposed. There was also a call for more active language to be used and a corresponding suggestion that the purpose could be framed in terms of acknowledging and responding ‘actively to the lasting harm’ done to children.

3.11 Most of those indicating that they agreed with the proposed wording (via the closed question) used their comments to welcome the overall intention or key aspects of the proposed scheme, such as the acknowledgement of harm caused, the opportunity to give a voice to victims / survivors, the signal that institutions would be held accountable for past failings or the indication that steps would be taken to prevent such abuse in the future. Some also commented specifically that they thought the wording was ‘fair’, ‘clear’ or ‘straightforward’. In some cases, respondents drew on their own personal experience (or that of a close relative), citing past experience of abuse or lasting or ongoing impacts.

3.12 However, even among those indicating that they agreed with the proposed wording, some nevertheless offered comments and suggestions relating to specific phrases and concepts. These largely reflected the issues of scope and definition identified above in the comments from those disagreeing with the proposed wording. Again, the most common issue raised here was the reference to ‘long-term responsibility’: while some participants simply suggested that this should be defined, others thought it should be removed so as not to negate the experiences of those abused in the course of short-term placements. There was a suggestion that the only relevant factors should be that a child was placed in a setting by a public body and in that setting they suffered abuse. The phrase ‘responsibility for the care of the child in place of the parent’ was also thought by some to be potentially problematic as there may have been cases in which the state did not assume formal responsibility but nevertheless played a significant role in exposing the child to the situation in which abuse occurred. There was also a suggestion that the scheme should take account of cases in which institutions and bodies facilitated private arrangements within families, supporting relatives or family friends to provide care for the child in place of the parent.

3.13 These points reflected a wider concern about issues of definition, particularly among organisational respondents. There was a suggestion that there should be greater alignment between the proposed purpose and the wording used in the Limitation (Childhood Abuse) (Scotland) Act 2017 – a theme which, again, recurred in responses to subsequent questions.

3.14 Some individuals who indicated that they agreed with the proposed wording at the closed question nevertheless signalled that they would like to see other specific amendments: for example, that the words ‘or neglected’ be added to the phrase ‘children who were abused’ (but see the discussion of the definition of abuse at Question 7), or that the description of purpose should specifically mention the impact of abuse.

Principles (Q2)

3.15 The consultation paper also proposed a set of guiding principles for the redress scheme:

• To ensure that redress is delivered with honesty, decency, trust and integrity
• To make the scheme as accessible as possible
• To treat applicants with fairness and respect and to offer them choice wherever possible
• To ensure that the assessment and award process is robust and credible
• To make every effort to minimise the potential for further harm through the process of applying for redress.

3.16 Question 2 asked respondents if they agreed with these principles.

3.17 The results suggest a very high degree of support for the principles outlined in the consultation paper: as Table 3.2 shows, 88% of organisations and 95% of individuals agreed with these. Of the remainder, more respondents indicated that they were ‘unsure’ than actively disagreed.

Table 3.2: Q2 – Do you agree with these guiding principles?

	Yes		No		Unsure			Total
Respondent type	n	%	n	%		n	%		n	%
Local authority / public sector partnerships	10	77%	–	0%		3	23%		13	100%
Other public sector organisations	4	80%	1	20%		–	0%		5	100%
Current or previous care providers	9	100%	–	0%		–	0%		9	100%
Third sector, including survivor groups	6	86%	1	14%		–	0%		7	100%
Legal sector organisations	6	100%	–	0%		–	0%		6	100%
Other organisational respondents	3	100%	–	0%		–	0%		3	100%
Total organisations	38	88%	2	5%		3	7%		43	100%
Individual respondents	209	95%	2	1%		10	5%		221	100%
Total (organisations and individuals)	247	94%	4	2%		13	5%		264	100%

One individual ticked ‘yes’ and ‘no’ and one ticked ‘yes’ and ‘unsure’ in response to this question. These responses are not included in the table above.

Percentages may not total 100% due to rounding.

3.18 In total, 115 respondents (79 individuals and 36 organisations) provided comments at this question, typically suggesting additions and amendments to the guiding principles – this included respondents who had answered ‘yes’, ‘no’ and ‘unsure’ at the closed question. Comments from all three groups (those who agreed or disagreed or were unsure about the proposed principles) were similar in nature and have been combined in the following analysis.

3.19 Some respondents mentioned additional concepts which they considered should be incorporated into the principles of the scheme. Among these, the most commonly mentioned was transparency; there was also one specific suggestion that the fourth principle be amended to read ‘robust, credible and transparent’.

3.20 Another proposed additional principle was timeliness, with participants emphasising the need for claims to be processed swiftly. This was seen to be important, either because of the age of potential claimants or simply because victims / survivors have already waited a long time for redress. Less often, individual respondents proposed that other specific concepts, such as fairness, consistency, efficiency or compassion, should be reflected in the principles of the scheme. Some individuals and organisations also suggested that the principles of the scheme should explicitly refer to the need to provide appropriate support for applicants.

3.21 In addition, the point was made that there are a number of standards or principles arising from international human rights law in relation to reparations and that these – including, for example, notions of adequacy, effectiveness and promptness – should be more fully reflected in the guiding principles for the scheme.

3.22 Some organisational respondents noted that the proposed wording was currently geared towards the needs and interests of individual claimants and suggested that the principles should be extended to cover all aspects of the operation of the scheme – including, for example, the involvement of organisations and individuals who are not themselves applicants.

3.23 Others were concerned that aspects of the proposed wording – such as the reference to robustness – might imply a standard of proof that would be difficult or impossible for some claimants to meet, or imply an assessment process that might be distressing or retraumatising for those involved. Occasionally, respondents specifically queried the reference to the scheme being as inclusive ‘as possible’ or ‘wherever possible’ – suggesting that this might create space for the authorities to evade their responsibility to all victims / survivors.

3.24 Some organisational respondents argued in relation to the proposed principles that, while financial redress should be fair and proportionate, it should not be at a level that would jeopardise the ability of organisations to provide current or future services. This issue will be discussed in further detail in Chapter 11.