Financial redress for historical child abuse: consultation

Part 1: Design of The Redress Scheme

This part includes questions about the detailed design of the statutory financial redress scheme. It includes key issues from the 2017 consultation which were identified as requiring further detailed consideration.

Part 1.1 Purpose and Principles of the Financial Redress Scheme

Purpose

The introduction to this consultation paper (see here) sets out the recent background to financial redress in Scotland, tracing its development from the Action Plan on Justice for Victims of Historic Abuse of Children in Care in 2014 to the statement in Parliament on 25 April this year launching the Advance Payment Scheme for survivors of abuse in care who are age 70 years or over or have a terminal illness.

It is clear that systemic failings existed in the past and the Deputy First Minister has made clear that the Scottish Government wholeheartedly accepts the need to provide acknowledgement and tangible recognition of the harm that was done to children in the past who were abused in care in Scotland, acknowledging at the same time that such recognition cannot in any way take away the pain that individuals have suffered.

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?

Principles

Views from the 2017 survivor consultation

• Scheme design should take account of a number of key principles to ensure the integrity and effectiveness of a scheme. Victims/survivors who answered this question noted that the scheme will need to address important principles of choice, fairness, respect, integrity and individual experience, needs and wishes. The integrity of the scheme is crucial and it must be robust and credible; the evidence required, and the scrutiny of it, must create a balance which will deter fraudulent claims, without putting off applicants or refusing genuine applications because of lack of evidence.

It is our intention that the financial redress scheme should be underpinned by guiding principles which respect these views. Expectations of the scheme will vary, as will the broad range of needs and interests sought by those applying. It will, nevertheless, be important to ensure that principles which reflect survivors’ views are embedded within the scheme. The design of the scheme will also comply with our wider legal obligations, including those which arise from the European Convention on Human Rights.

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.

Question 2

Do you agree with these guiding principles?

Yes/No/Unsure

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

Part 1.2 Eligibility for the Financial Redress Scheme

The financial redress scheme is for survivors of historical child abuse in care in residential settings in Scotland where institutions and bodies had long term responsibility for the care of the child in place of the parent.

Defining ‘in care’

We intend that ‘in care’ for this redress scheme is based on two criteria. First, where an institution or body had long-term responsibility in place of the applicant’s parent, and secondly that the applicant was within an eligible residential setting.

By ‘long-term responsibility in place of the parent’ we mean where institutions/bodies took decisions about the child’s care and upbringing and were morally responsible for their physical, social and emotional needs in place of parents.

We know from survivors that the ways in which children found themselves in residential settings were many and varied in the past. Examples might include situations where families were unable to provide sufficient care for their children at a point in time, often because of the death or serious illness of one or both parents, or because a court order or other legal process placed the child in a setting.

As regards the second part (eligible residential setting) we propose using the Terms of Reference of the Scottish Child Abuse Inquiry which define ‘children in care’ as ‘children in institutional residential care such as children’s homes (including residential care provided by faith based groups); secure care units including List D schools; borstals; Young Offenders’ Institutions; places provided for Boarded Out children in the Highlands and Islands; state, private and independent boarding schools, including state funded school hostels; healthcare establishments providing long term care; and any similar establishments intended to provide children with long term residential care. The term also includes children in foster care.’

As this financial redress scheme is for those in the circumstances set out above, not all those who are covered by the terms of reference of the Inquiry would be eligible for this scheme. For example, children who attended fee paying boarding schools, and who were sent there by their parents for the primary purpose of education, were not the long-term responsibility of the institution in place of the parent, and therefore would not be eligible under this financial redress scheme.

Similarly, those in hospital care primarily for the purposes of medical or surgical treatment, where parents retained the long-term responsibility, would not be eligible.

We recognise that abuse may have taken place in these settings and that other routes to justice and support are available to these groups.

We will ensure that eligibility for the scheme is consistent with its purpose as set out above, including through careful analysis of the rights of potential applicants under the European Convention on Human Rights.

Question 3

Do you agree with the proposed approach in relation to institutions and bodies having long term responsibility for the child in place of the parent?

Yes/No/Unsure

Please explain your answer.

Question 4

Subject to the institution or body having long term responsibility for the child, do you agree that the list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference?

Yes/No/Unsure

Please explain your answer.

Question 5

Where parents chose to send children to a fee paying boarding school for the primary purpose of education, the institution did not have long-term responsibility in place of the parent. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme.

Do you agree?

Yes No Unsure

Please explain your answer.

Question 6

Where children spent time in hospital primarily for the purpose of medical or surgical treatment, parents retained the long-term responsibility for them. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme.

Do you agree?

Yes No Unsure

Please explain your answer.

Defining ‘abuse’

We have considered two options for the definition of abuse for the purpose of this financial redress scheme. The Limitation (Childhood Abuse) (Scotland) Act 2017, which defines abuse as ‘sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect’ and the Terms of Reference of the Scottish Child Abuse Inquiry which defines abuse as ‘primarily physical abuse and sexual abuse, with associated psychological and emotional abuse’.

The Limitation (Childhood Abuse) (Scotland) Act 2017 changed the rules around the time limits within which a claim for compensation can be made in the civil courts. This change meant that there is no longer a time bar on childhood abuse claims in the civil courts (although cases cannot be pursued through the civil courts where the only incidents of abuse took place prior to 26 September 1964). In our view the definition in the Limitation Act 2017 is broader as it specifically includes neglect, and it also includes emotional abuse whether or not physical or sexual abuse also occurred.

Question 7

We intend to use the same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 for the purpose of the financial redress scheme. This includes sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect. Do you agree?

Yes/No

Please explain your answer.

A more detailed description of what constitutes emotional, physical and sexual abuse and neglect can be found in the National Guidance for Child Protection in Scotland (2014) https://www.gov.scot/publications/national-guidance-child-protection-scotland/.

Defining ‘historical’ abuse

Similar to financial redress schemes in some other countries, we need to define what we mean by ‘historical’ abuse.

On 1 December 2004 the then First Minister Jack McConnell made a public apology endorsed by the Scottish Parliament as a whole and Scotland began to face up to the harm done to children in care in the past. In his apology he said that Scotland would ensure that inspection, regulation and standards would be in place to prevent, detect and deal with abuse.

We propose therefore that this redress scheme defines ‘historical’ abuse as that which took place prior to 1 December 2004.

Rapid and substantial change in relation to the monitoring and regulation of the care system and its staffing in Scotland took place in the period immediately following the creation of the Scottish Parliament. This included legislative, policy, supervisory and regulatory change.

These changes included the Regulation of Care (Scotland) Act 2001, with the key aim of improving standards of care services, leading to the establishment of the Care Commission and the Scottish Social Services Council. Also in 2001, the Scottish Social Services Council was established for the mandatory registration and regulation of care services and social workers. In 2002, the Care Commission was established, with responsibility for the inspection of adult and children services, as was Disclosure Scotland, to provide criminal records disclosure services for employers and voluntary sector organisations.

As a result the regulation, inspection and child protection guidance and standards now in place are radically different to the past.

Question 8

In our view 1 December 2004 represents an appropriate date to define ‘historical’ abuse for this financial redress scheme. Do you agree?

Yes/No/Unsure

Please explain your answer.

Other eligibility issues

Child migrants

Survivors who suffered abuse in Scotland, meet all the eligibility criteria of the redress scheme, and who were also part of the UK Child Migration Programmes would be eligible to apply. In our view this would be the case even if they have already received a payment under the UK Government’s payment scheme for former British child migrants, or are planning to apply to that scheme. The UK Government’s scheme for British child migrants is for a different purpose and does not require the applicant to have suffered abuse.

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?

Abuse in care that occurred in other countries

This redress scheme is for abuse that took place in Scotland. For abuse that occurred in any other country, it would be the responsibility of the other jurisdiction to provide redress for abuse that occurred there. Child migrants or others who meet the eligibility of this redress scheme would be eligible to apply even if they have already received a payment for any abuse they also suffered in another country. (The position of individuals who have already received a payment for historical abuse that occurred in care in Scotland is provided at page 19).

Those with a criminal conviction

Redress schemes in other countries have taken different approaches to the eligibility of those with a criminal conviction. In our view, someone with a criminal conviction should not be excluded from applying for redress if they meet the eligibility requirements of the scheme.

Question 10

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

Other

Question 11

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

Part 1.3 Payment Structure, Evidence and Assessment

Views from the 2017 survivor consultation

• The preferred approach to financial compensation/redress is a combination payment. The majority of victims/survivors who answered this question felt that the preferred approach is a combination payment which involves a flat-rate standard payment along with an individual experience payment which takes account of a range of factors such as: the nature of abuse; the severity of abuse; the period of abuse; and the life-long consequences of the abuse. The operational design and detail will need further consideration.
• A range of written and verbal information, where available, should be used to assess individual applications. Victims/survivors who answered this question considered that, where available, a range of written and verbal information should be used to assess applications, and this included: information about placement details; nature and severity of abuse experienced; information on impact of the abuse; testimony from a third party; police records of alleged or convicted perpetrators of abuse; previous or ongoing civil/criminal action; and, material prepared for another purpose. Challenges in the availability and securing of information, the impact on individuals through the process and the importance of choice were also noted.

Payment structure

In line with the views expressed in the 2017 survivor consultation, we intend to design a redress scheme with a combination payment approach which would have two possible stages.

Stage One would not attempt to assess individual experience of abuse or its impact. This stage may be viewed as more straightforward for applicants. Applicants could choose to apply for an additional payment over and above Stage One. This would assess their individual experience of abuse and the impact it has had on their life. By its nature, this Stage Two payment would require more information and supporting evidence than Stage One.

An assessment for a Stage Two payment, for those who chose to do so, would take account of a number of factors in a fair, consistent and transparent way.

Evidence Requirements

Supporting documentation which confirms in care status and in relation to abuse

To apply for a payment from this financial redress scheme we consider that documentary evidence of having been in care in Scotland will be required. Some form of verification of the documents submitted would be required.

Question 12

What options might be available for someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland?

Many institutions and bodies have committed considerable resource to helping survivors to obtain access to historical records. Drawing on the approach to redress in Ireland, we are however considering whether there should be a power set out in legislation which requires bodies or organisations, subject to certain criteria, to release any documents they hold which relate to an applicant’s identity, placement details, abuse or injury suffered as a consequence of that abuse.

Question 13

Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available?

Yes/No

Please explain your answer.

Question 14

For Stage One, what evidence do you think should be required about the abuse suffered?

Yes/No

A signed declaration by the applicant that they suffered abuse, but no other supporting evidence

Yes/No

A short written description of the abuse and its impact

Yes/No

Any existing written statement from another source which details the abuse in care

Yes/No

Question 15

Do you have any additional comments on evidence requirements for a Stage One payment?

Question 16

For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?

Any existing written statement from another source which details the abuse

yes/no

Oral testimony of abuse and its impact

yes/no

Short written description of the abuse and its impact

yes/no

Detailed written description of abuse suffered and its impact

yes/no

Documentary evidence of impact of the abuse

- Existing medical and/or psychological records

- New medical and/or psychological assessment

yes/no

Supporting evidence of the abuse/impact from a third party

yes/no

Question 17

Do you have any comments on evidence requirements for a Stage Two payment?

Provision for oral testimony

The majority view from the survivor consultation in 2017 was that an applicant should be able to give oral testimony of abuse and its impact if they are unable to provide documentary evidence. In some redress schemes in other countries, oral hearings have only been used in some circumstances, for example when a case was complex and could not be resolved based on documentary evidence or when a payment offer was rejected by the applicant.

Question 18

Do you think applicants should be able to give oral evidence to support their application?

Yes/No

If yes, under what circumstances might it be available?

Stage Two Assessment

As described above, the additional Stage Two payment would require an assessment of an individual’s experience of abuse and the impact it has had. It is inherently difficult to assess this given that individuals can have very different responses to similar abuse experiences and the impact of the abuse on their life can manifest in very different ways. We will therefore take account of a range of factors in a consistent, fair and transparent way.

From the survivor consultation in 2017, the types of factors considered relevant for an individual assessment were length of time in care, the type of abuse, the frequency and severity of abuse, the impact of abuse, and loss of opportunity as a result of the abuse and its impact.

Question 19

Do you have any views on whether the length of time in care should be factored into the Stage Two assessment?

Yes/No

If so how?

Question 20

Do you have any views on the balance the assessment should give to different types of abuse (physical, emotional, sexual, neglect)?

Question 21

What are your views on which factors in relation to the abuse and its impact might lead to higher levels of payment?

Question 22

Do you think:

• the redress payment is primarily for the abuse suffered yes/no
• the redress payment is primarily for the impact the abuse has had yes/no
• both the abuse suffered and the impact it has had should be treated equally yes/no

Please explain your answer.

Question 23

How do you think the scheme should ensure all parties are treated fairly and that the assessment and award process is sufficiently robust?

Consideration of other payments

Where an applicant has already received some form of compensation in respect of their abuse (for example a court award following a civil court action, or an out of court settlement) most redress schemes in other countries have dealt with this by deducting an appropriate amount from the redress payment. The principle underlying this is that a person should not be compensated twice for the same matter.

Some other schemes have taken a different approach, and have excluded people who have already received damages or settlements in respect of the same abuse from applying to their redress scheme.

We intend that those who have received a payment from another source should still be eligible to apply for redress, but that the corresponding amount should be deducted from the redress payment. Consideration would need to be given to how to adjust any previous payment to take account of inflation and any other relevant factors.

Question 24

Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme?

Yes/No

Please explain your answer.

Question 25

Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme?

Yes/No

Please explain your answer.

Choosing between accepting a redress payment and seeking a payment from another source

Many redress schemes in other countries have required applicants to choose between accepting a redress payment and pursuing remedies in the civil courts. We are proposing to take the same approach. In other words, an applicant should find out how much they would receive by way of a redress payment and take legal advice before deciding whether to accept it, or reject it and pursue an award in the civil courts instead. This will commonly require the signing of a waiver at the point of accepting a redress payment, which means the applicant would give up their right to raise an action in court in respect of their experience in care.

Question 26

Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action?

Yes/No

Please explain your answer.

Part 1.4 Making an Application

Time period for making an application

Question 27

We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale?

Yes/No

Please explain your answer.

Practical help making an application

The 2017 survivor consultation highlighted that different types of help might be required during the application process. For example practical support might include help filling out the application form, or with obtaining records.

Question 28

Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process?

Yes/No

Please explain your answer.

Legal advice

We are considering whether the redress scheme should address the cost of legal advice or representation in some form. We intend to explore all options for delivering this including Legal Aid. We propose at a minimum that independent legal advice should be provided at the point of accepting a redress payment if this were to require the signing of a waiver.

Question 29

In your view, which parts of the redress process might require independent legal advice? Please tick all that apply.

In making the decision to apply

During the application process

At the point of accepting a redress payment and signing a waiver?

In redress schemes in some other countries the cost of providing legal advice has been significant and has been criticised by survivors. Possibilities for managing the costs of independent legal advice could include a set payment per application or a payment to take into account the time spent on an application capped at a certain level, including through Legal Aid.

Question 30

How do you think the costs of independent legal advice could best be managed?

Part 1.5 Next-of-Kin

Views from the 2017 survivor consultation

• Next-of-kin of deceased victims/survivors of historic abuse should be eligible to apply to a scheme. The majority of victims/survivors who answered this question indicate support that the next-of-kin of deceased victims/survivors should be eligible for compensation/redress. However, there were a number of cautions about the eligibility of next-of-kin, in terms of the definition of next-of-kin, personal relationships with the deceased victims/survivors while they were living, and practical operational issues. These matters require further consideration.

We intend that surviving spouses and children of those who meet all the eligibility criteria, including that they were abused in an eligible residential setting in Scotland, prior to 1 December 2004, should be able to apply to the financial redress scheme for a “next-of-kin payment”. The purpose of the next-of-kin payment is to acknowledge the fact that the survivor passed away before the financial redress scheme was in place. It may not always be straightforward to assess potential applications by surviving spouses and children, particularly where family circumstances were complex.

Question 31

What are your views on our proposed approach to allow surviving spouses and children to apply for a next-of-kin payment?

Some schemes in other countries have provided for next-of-kin applications. Where this is the case they have set a “cut-off” date to determine next-of-kin eligibility. This is the date after which a survivor must have died. For example, in the Republic of Ireland’s scheme a survivor had to have died after 12 May 1999 for their next-of-kin to be eligible. This was the date of the announcement of the inquiry in Ireland which led to the establishment of their redress scheme.

It may be appropriate for Scotland to take a similar approach and to use 17 December 2014, the date of the announcement of the Scottish Child Abuse Inquiry, as the cut-off date. It may also be appropriate to use 23 October 2018 as that was the date that the Deputy First Minister confirmed there would a redress scheme for Scotland and that there would be some form of provision of next-of-kin. Our intended approach is to provide a cut-off date of 17 November 2016, the date on which the Deputy First Minister announced that he wanted to hear wider views on the potential provision of financial redress. That consultation led to the recommendation that next-of-kin of deceased victims/survivors should be eligible for redress.

Question 32

We are considering three options for the cut-off date for next-of-kin applications (meaning that a survivor would have had to have died after that date in order for a next-of-kin application to be made). Our proposal is to use 17 November 2016.

• 17 December 2014 - the announcement of the Scottish Child Abuse Inquiry yes/no
• 17 November 2016 – the announcement of the earlier consultation and engagement work on the potential provision of financial redress yes/no
• 23 October 2018 – the announcement that there would be a statutory financial redress scheme in Scotland yes/no

What are your views on which date would be the most appropriate?

Given the next-of-kin payment makes no attempt to assess the individual experience of the deceased survivor, it will be a flat-rate payment. It is not an attempt to assess the impact of the deceased survivor’s abuse experience on surviving family members. Instead it is intended to recognise and acknowledge the harm done to the deceased survivor while they were in care in Scotland.

Question 33

We propose that to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met all the eligibility criteria.

What forms of evidence of abuse should next-of-kin be able to submit to support their application?

Question 34

What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course?

• 25%
• 50%
• 75%
• 100%

Please explain your answer.

Part 1.6 Financial Contributions

Views from the 2017 survivor consultation

• All those responsible should contribute to a financial compensation/redress scheme. Victims/survivors who answered this question consider that all those responsible should contribute, including: Scottish Government, residential and foster care providers, local authorities which placed children in care and those which provided care placements, and religious bodies responsible for care services. The SHRC Framework also makes clear that institutions should contribute to reparation packages in a manner proportionate to the extent to which they are accountable.

Contributions to the redress scheme

In the previous survivor consultation, most respondents felt the particular provider/institution should contribute. The Scottish Human Rights Commission notes that, in line with international good practice, providers/institutions should contribute to reparations packages to the extent to which they are accountable. We expect all those responsible to make a meaningful contribution to the costs of delivering a financial redress scheme in Scotland. To ensure that this is done fairly we are building on existing information to understand the status of organisations and institutions over time as well as their relative roles and responsibilities.

In developing our scheme, we will learn from examples of funding models applied in redress schemes in other countries. Two examples are provided below which illustrate different approaches.

In Ireland, a funding arrangement was agreed at the outset based on a 50/50 split between the state and an umbrella organisation representing religious congregations. This was based on a forecast of costs for their redress scheme, a forecast which turned out to be greatly under-estimated. There were significant difficulties in obtaining the funds and property assets which were to have met these organisations’ share of the costs.

The Australian National Redress Scheme follows the ‘responsible entity pays’ principle. The Australian Government bears the cost initially, and is then reimbursed by a funding contribution from participating institutions. Under the Australian scheme rules, applications for redress can only be processed from survivors whose institution has joined the scheme (it is not our intention to take this approach in Scotland).

In Scotland, earlier engagement with providers and other professional groups carried out by CELCIS suggested that the creation of a structured national financial redress scheme could achieve greater consistency of processes and outcomes for survivors. Providers also felt that there may be advantages to a national redress scheme rather than the existing legal process. A paper summarising the views expressed, including possible opportunities and barriers, is available at https://www.celcis.org/index.php/download_file/view/2854/1326/.

Question 35

We think those bearing responsibility for the abuse should be expected to provide financial contributions to the costs of redress. Do you agree?

Yes/No

Please explain your answer.

Question 36

Please tell us about how you think contributions by those responsible should work. Should those responsible make:

• an upfront contribution to the scheme Yes/No
• a contribution based on the number of applicants who come forward from their institution or service Yes/No
• Another approach to making a financial contribution to the redress scheme costs? Please explain

Other comments?

Question 37

Are there any barriers to providing contributions, and if so how might these be overcome?

Question 38

Should the impact of making financial contributions on current services be taken into account and if so how?

Yes/No

Please explain your answer.

Question 39

What other impacts might there be and how could those be addressed?

Question 40

How should circumstances where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets, be treated?

Question 41

What is a fair and meaningful financial contribution from those bearing responsibility for the abuse?

Question 42

What would be the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme?

Question 43

Should there be consequences for those responsible who do not make a fair and meaningful financial contribution?

Yes/No

If yes, what might these be?

Contributions to wider reparations

In some other countries, the care provider representatives have funded support services, separate from any contribution to financial redress. In Ireland, a national counselling and support service is funded by the Catholic Church. The service aims to meet the support needs of survivors of religious, institutional and clerical abuse and their families. In Queensland, religious organisations contributed along with the Government to a trust fund to support former residents rebuild their lives.

Residential service providers and other professional groups in Scotland previously indicated that financial redress should be viewed in the context of a broader reparation package and outlined opportunities where they have or could contribute. This includes:

• Enabling supportive access to records;
• Financial support for counselling sessions;
• Signposting people to a range of relevant supports;
• Tracing and unifying families;
• Offering after-care support;
• Individual sessions to promote reconciliation;
• Individual apology;
• Ensuring that previous residents are aware of the scrutiny by current registration and inspection regimes.

Question 44

In addition to their financial contributions to the redress scheme, what other contributions should those responsible for abuse make to wider reparations?