Financial redress for historical child abuse in care: consultation analysis

5. Eligibility – other inclusion / exclusion criteria (Q9–Q11)

5.1 The consultation sought views on the potential eligibility of two specific groups: survivors who experienced abuse in Scotland but were also part of the UK child migration programmes^[4] (and may have received, or might still receive, a payment under the UK Government’s payment scheme for former British child migrants); and survivors with a criminal conviction. Respondents were also given the opportunity to provide any other comments on eligibility for the scheme.

Question 9: Do you have any comments you would like to make in relation to child migrants who also meet the eligibility requirements of this redress scheme?

Question 10: Do you have any comments about the eligibility of those with a criminal conviction?

Question 11: Do you have any other comments on eligibility for the financial redress scheme?

There was widespread support among both individuals and organisations for the proposal to allow child migrants to apply to the scheme.

Key points

• Respondents argued that child migrants should be included if they had experienced abuse in care in Scotland, regardless of where they now lived, or any payments already received from the UK Government’s scheme for former child migrants. They highlighted the impact of the abuse, the particular vulnerability of the children involved and questions of fairness and equality.
• There appeared to be some misunderstanding among those who opposed the proposal, with some believing, for example, that the proposal related to child migrants ‘coming in’ to Scotland. However, there was also occasional concern expressed about the possibility of ‘double payments’.
• Respondents were largely supportive of the proposal to allow individuals with criminal convictions to apply to the scheme. In this context, some respondents pointed out that many victims / survivors are likely to have criminal convictions; others argued explicitly that the experience of abuse in care may lead to offending.
• The views of respondents opposed to the proposal typically centred on particular types of convictions. It was argued, for example, that anyone who had committed very serious offences (and, in particular, offences involving children and / or sexual abuse) should be deemed ineligible.
• In terms of general views on eligibility, respondents commonly said that the proposed terms of the scheme were too restrictive and / or that the scheme should be open to all those abused in care. While some suggested that eligibility should be looked at on a case-by-case basis, an alternative view was that all cases should be treated equally.

Eligibility of child migrants (Q9)

5.2 The Scottish Government proposed that survivors who suffered abuse in Scotland and met all the eligibility criteria, and were also part of the UK child migration programmes should be eligible to apply to the redress scheme. Question 9 (a single-part open question with no preceding tick-box question) asked respondents if they had any comments on this proposal. A total of 192 respondents (154 individuals and 38 organisations) provided a response. However, a substantial number of individuals (around one in five) simply said they had no comment to make or that they felt they lacked the knowledge or information to do so.

5.3 Almost all of the substantive responses from organisational respondents, and the vast majority of those from individuals, were supportive of the provisions for child migrants as outlined in the consultation paper.

5.4 Most commonly, respondents simply expressed general agreement with the proposal or sought to emphasise that child migrants should be included if they had experienced abuse in care in Scotland, regardless of where they now lived or any payments already received from the UK Government’s scheme for former child migrants.

5.5 Some respondents elaborated on why they thought child migrants should be considered eligible, arguing, for example, that:

• ‘Abuse is abuse’ – in other words, all victim / survivors should have a route to redress.
• The impact or trauma of abuse experienced by child migrants should be recognised.
• Child migrants experienced particular vulnerability having been removed from their country of birth, without consent.
• The eligibility of child migrants is a matter of fairness, justice or equality.
• Payments in relation to child migration were (and are) a separate matter and should not be taken into account when considering financial redress for abuse suffered in care in Scotland.

5.6 Some of those who supported the proposal outlined in the consultation paper nevertheless sought to emphasise that eligibility should be strictly limited to those who experienced abuse in Scotland, that there should be a threshold in terms of the minimum time spent in a care setting, or that eligibility should be subject to proof of status.

5.7 Among those who indicated opposition to the proposal to allow applications from former child migrants were some individuals who appeared to have misunderstood the issue. For example, a handful expressed concern about migrants ‘coming in’ to Scotland. Others indicated that they believed redress should be provided by the government of the country to which a child migrant had been sent – apparently because of a misapprehension that the Scottish scheme might compensate victims / survivors for abuse suffered abroad.

5.8 Most of the remaining comments from individuals related to the possibility of ‘double payments’ and the suggestion that, as child migrants may already have received financial compensation from the UK or a foreign government scheme, it would not be fair for them to also receive further redress from the proposed scheme in Scotland.

Eligibility of those with a criminal conviction (Q10)

5.9 The consultation paper noted that redress schemes in other countries have taken different approaches to the eligibility of those with a criminal conviction. In the context of the Scottish scheme, it was proposed that someone with a criminal conviction should not be excluded from applying for redress if they meet the broader eligibility requirements. Question 10 (a single-part open question with no preceding tick-box question) asked respondents for their views on this issue. A total of 237 respondents (197 individuals and 40 organisations) provided written responses of some kind; some, however, simply wanted to indicate that they had no comment to make.

5.10 For the most part, respondents who offered substantive comments were supportive of the proposal contained in the consultation paper. Among responses from both organisations and individuals, by far the most common theme was the possible link between experience of abuse and later offending. Some respondents simply pointed out that many victims / survivors are likely to have criminal convictions; others argued explicitly that the experience of abuse in care may lead to offending – for example, through drug and alcohol use as a means of dealing with trauma or broader mental health difficulties, or through exposure to criminogenic environments. These arguments were made by both individual and organisational respondents.

5.11 Other explanations of why those with a criminal conviction should be considered eligible for the scheme included the following:

• Redress should be open to all; thus those with convictions should be eligible if they meet the scheme criteria.
• Excluding those with a criminal conviction would be discriminatory and / or in breach of human rights .
• Financial redress should be about the failings of the system and about harm experienced as a child – not the character and experience of individuals as adults.
• There is a risk that individuals might be deemed ineligible on the basis of wrongful convictions or childhood offending for minor offences.

5.12 Among individual respondents who were opposed to allowing those with a criminal conviction to apply to the scheme, there was a single overarching view: that anyone who had committed very serious offences (and, in particular, offences involving children and / or sexual abuse) should be deemed ineligible.

5.13 Some respondents (both individuals and organisations) who were straightforwardly in favour of, or opposed to, the proposal contained in the consultation paper also touched on this theme, suggesting that eligibility or the level of redress should take account of the nature of any criminal conviction. Again, some suggested that restrictions should apply to those convicted of serious crimes, while others focused specifically on crimes involving children and / or sexual offending. A further view was that applications from individuals with extensive criminal records, or a history of fraudulent behaviour, should be given particular scrutiny.

5.14 Two further comments were made about the proposal to allow claims from those with criminal convictions: first, that some adverse public reaction should be anticipated; and second, that it might be appropriate for vulnerable claimants (not just including those with a criminal conviction) to have a representative appointed to help ensure that any redress payment is used appropriately.

Other comments on eligibility (Q11)

5.15 Question 11, a further single-part open question, asked for any other comments on eligibility for the financial redress scheme. Although 179 responses were recorded at this question, around two-fifths of these were from respondents who simply said that they had no comment to make. Other comments, from both individual and organisational respondents, related to themes discussed more directly in the context of other questions, and are therefore not discussed here. The remaining comments covered a wide range of themes, as discussed below.

5.16 Some respondents sought to reinforce themes already discussed in relation to earlier questions on eligibility. Most commonly, it was argued – especially by individuals – that the proposed terms of the scheme are too restrictive and / or that it should be open to all those abused in care in Scotland regardless of characteristics such as nationality or criminal convictions and regardless of setting.

5.17 There was also a view that eligibility (and, by implication, payments) should be looked at on a case-by-case basis or that cases should be ‘judged on their own merit’. Variation in the nature, duration and harm or impact of abuse were all mentioned in this context. However, an alternative view was that all cases should be treated equally because of the difficulty of establishing or evaluating such differences, particularly in relation to harm.

5.18 A number of additional themes were especially evident in responses from organisational respondents. For example, there was a view that any exclusions from the redress scheme needed to be fully justified and / or based on clear definitions, and the relationship between the proposed scheme and other forms of support, acknowledgment and redress needed to be clear. It was variously argued that there should be scope – and a process – to challenge scheme decisions, including those on eligibility; and to review (and, if necessary, adjust) the terms of the scheme after a period of operation. The need for special provisions for those lacking mental or legal capacity was also highlighted.

5.19 Other responses addressed other aspects of how the scheme could or should operate, rather than issues of eligibility per se. These included, for example, suggestions that the scheme should not involve a ‘drawn out’ process, or be set up in such a way that it might ‘intimidate’ vulnerable victims / survivors or otherwise place unnecessary ‘hurdles’ in the way of potential applicants. Individual respondents also used this question to draw attention to the circumstances and potential eligibility of particular groups – especially next-of-kin (an issue covered by Questions 31 to 34 – see Chapter 10) and victims / survivors who are older and / or in poor health. In relation to the latter, it was suggested that the age range for Advance Payments should be extended.