Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: business and regulatory impact assessment (BRIA)

1. Purpose and intended effect

1.1 Background

On 23 October 2018 in the Scottish Parliament, the Deputy First Minister offered an unreserved apology on behalf of the Scottish Government to all those who were abused as children in care, and committed to establish a financial redress scheme for survivors of historical child abuse in care.

This announcement was in response to recommendations made by the InterAction Action Plan Review Group, a national group that includes survivor representatives, care providers, Social Work Scotland, the Scottish Human Rights Commission (SHRC), and the Centre for Excellence for Children's Care and Protection (CELCIS). The recommendations followed a survivor consultation in 2017, which received just over 180 responses; an engagement exercise to gather initial views from care providers and other relevant professional groups; and a review of available information about financial redress schemes in other countries.^[1]

In recent years, the Scottish Government has put in place a range of measures to address historical child abuse. These include:

• the National Confidential Forum, established by the Victims and Witnesses (Scotland) Act 2014, which provides an acknowledgement function for survivors of abuse in care^[2];
• the Scottish Child Abuse Inquiry (SCAI) established in 2015, which investigates the nature and extent of historical abuse of children whilst in care in Scotland;
• Future Pathways, established in 2016, which provides personal outcome-focussed support to survivors of abuse in care;
• the introduction of the Apologies (Scotland) Act 2016, intended to encourage a change in social and cultural attitudes towards apologising; and
• the Limitation (Childhood Abuse) (Scotland) Act 2017, which removed the three year time limit on personal injury claims for damages in respect of childhood abuse.^[3]

In 2019, an advance payment scheme opened to provide redress payments for survivors of historical in care abuse who are older or have a terminal illness. As of January 2022, payments have been made to over 720 applicants.

Findings published so far by the SCAI indicate widespread, serious systemic and societal failings over several decades in relation to children in the care of organisations investigated in its case studies to date. These investigations have found that children were subject to physical, sexual, and emotional abuse and neglect. Care establishments were often places of fear, hostility, and confusion where feelings of isolation and vulnerability could be commonplace. Children who spoke up were often not believed. Many did not speak up because they were unable to, or they thought the abuse that they experienced was 'normal'.^[4] For some, the abuse was part of a 'regime of punishment and control that was at the core of the institution in which they lived'.^[5] For others, the conduct of individual perpetrators of abuse went undetected or unchecked. But for all who were abused, they were failed by the very systems in place to protect them.

1.2 Objective

The purpose of the redress scheme will be to acknowledge and provide tangible recognition of the harm suffered as a result of historical child abuse whilst residing in a relevant care setting in Scotland.^[6] The redress scheme is intended as a collective, national response to historical abuse in care. Survivors expressed overwhelming support for the introduction of such a scheme in the consultation exercise carried out by CELCIS in 2017. The redress scheme will be open to accept applications for a period of whichever is the longer of five years beginning with the date on which section 31 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 ("the Act") comes into force, or the day falling two years after the publication by the Scottish Child Abuse Inquiry of its final report. Section 31(3) of the Act obliges Ministers to carry out a review of whether the application period should be extended. This must be done within the period of 15 months ending with the day the application period is due to end. The Act provides Ministers with a power to extend the application period if appropriate.

In line with responses to the pre-legislative consultation, an underlying principle of the scheme will be that organisations which were responsible for the care of children at the time of the abuse – whether providing care directly or otherwise involved in the decision-making processes and arrangements by which the child came to be in care in the place where the abuse occurred – will be asked to provide financial contributions. These organisations include third sector organisations, secure care institutions, religious organisations, independent and grant-aided special schools, and local authorities. The Scottish Government will cover all administration costs and the costs of redress payments to survivors to the extent that these are not offset by financial contributions from third parties.

The aim is that financial contributions should be fair and meaningful within the context of the particular organisation in question: fair, because they will be assessed against the available evidence and the actual number of applications settled where the organisations are named, and meaningful, because they will represent a tangible acknowledgement of the harms of the past and contributing organisations will agree not to contest applications that have been settled by Redress Scotland. Contributions will also be meaningful because by participating in the scheme, an organisation supports a survivor's access to a trauma-informed and non-adversarial source of redress. Where Scottish Ministers agree that an organisation has made a fair and meaningful contribution, it will be added to a publicly-available 'contributor list'^[7] and the contribution amounts committed and paid by the scheme contributor will be detailed.

Redress payments will be conditional upon the applicant signing a waiver relinquishing their right to continue or raise civil actions in respect of the abuse, against the Scottish Government or those organisations on the contributor list. This approach to seeking financial contributions is grounded in the principles that the scheme must be developed in a way that is fair, open, transparent, and managed with integrity.

The redress scheme will contribute to the Scottish Government's objective of creating lasting change in the care system, as detailed in The Government's Programme for Scotland 2019-20.^[8] It is part of a wider raft of measures which aim to address historical child abuse in Scotland, as described in Section 1.1.

In England and Wales, the Independent Inquiry into Child Sexual Abuse (IICSA) was established in 2015 to consider the extent to which to which state and non-state institutions failed to protect children from sexual abuse and exploitation. The Inquiry has undertaken a focused investigation into accountability and reparations, concluding, amongst other matters, that further investigation is required into the potential for a redress scheme to offer accountability and reparation to victims and survivors of child sexual abuse.^[9]

The UK Government has established a payment scheme for former British child migrants, people who were separated from their communities and sent abroad from England, Scotland, Wales, Northern Ireland, the Channel Islands or the Isle of Man as children as part of the UK Government's participation in Child Migration Programmes. Localised redress schemes for people abused in care as children are in operation in the London Borough of Lambeth and in Jersey. In March 2020, the Historical Institutional Abuse Redress Board was established to receive and process applications for compensation in relation to historical child abuse in residential institutions in Northern Ireland.

Ireland ran a redress scheme for people who were abused as children while resident in industrial schools, reformatories and other institutions subject to state regulation or inspection between 2002 and 2011. Other European countries have delivered their own redress schemes including, Austria, Belgium, Germany, Iceland, the Netherlands, Norway, Sweden, and Switzerland.^[10]

The UK is party to the European Convention on Human Rights (ECHR) which prohibits 'inhuman or degrading treatment or punishment' and provides for the right for an effective remedy before national authorities where this right has been violated. In relation to the ECHR, a number of areas that are covered by the Act may potentially engage relevant ECHR provisions such as Article 6 (right to a fair trial), Article 8 (protection of private life), Article 1 Protocol 1 (right to property) and Article 14 (prohibition of discrimination).

1.3 Rationale for Government intervention

In developing a financial redress scheme, the Scottish Government aims to fulfil its moral obligation to survivors and address shortcomings in survivors' access to justice via the legal system. It also looks to further positive outcomes for Scotland as a whole, as outlined in the National Performance Framework.^[11]

1.3.1 Moral and legal considerations

Scotland has a moral imperative to address the wrongs of the past, while acknowledging that nothing can ever make up for the suffering that survivors have endured. Nonetheless, survivors have shared that redress is an important element of justice as it provides some degree of recognition and acknowledgement.

Many, but not all, survivors of historical abuse have the option of seeking justice through the civil courts. However, while doing so may be the preferred or best option for some survivors, for many this route has a number of barriers including the potentially distressing nature of the adversarial process, difficulties securing the level of evidence required for a court action given the length of time since the abuse took place, potential dissatisfaction with the outcome (with or without a financial settlement), and not necessarily receiving acknowledgement or an apology. A financial redress scheme provides an alternative to the current civil court process, one designed to be non-adversarial, faster, and sensitive to survivors' needs.

The Limitation (Childhood Abuse) (Scotland) Act (2017) ("the 2017 Act") provided the option of raising a civil court action for significantly more survivors by removing the time bar on personal injury claims for damages in respect of childhood abuse (previously a claim generally had to be made within three years of the injury in respect of which the claim was made or the survivor's 16th birthday). However, those who experienced abuse before 1964 remain affected by the law on prescription. Prescription has the effect of completely extinguishing an obligation to make reparation for personal injuries (and associated rights) after an uninterrupted period of 20 years had elapsed. The 2017 Act makes no change to that law and does not revive any obligations which had already been extinguished previously by operation of the law. This means that anyone whose abuse took place before 26 September 1964 continues to be unable to pursue a claim in court for that abuse. For those survivors, a financial redress scheme may be the only way in which they can have their harm publically acknowledged and recognised.

As the work of SCAI progresses, the detailed nature of failings on the part of public and private institutions will become clearer, but at this point it is evident that children who were in various types of care settings were often extremely vulnerable. Family circumstances including death, parental mental or physical health, poverty and other issues influenced a child being placed in care. The sense of isolation for children was often compounded by the physical settings where care was provided and contact with available parents or siblings at times not being supported or facilitated.

These children's additional emotional and developmental needs, including for affection and comfort, should have been recognised. Instead, for many, the most basic physical needs of safety, security, food, and clothing were not met. The introduction of a financial redress scheme can go some way to recognising the times when those entrusted to look after our vulnerable children failed them and also further demonstrate a firm commitment to ensure mistakes of the past are not repeated.

The scheme is also not about apologising for care which was provided differently to care provided today. It is about acknowledging that children were abused and this resulted in huge suffering. Standards and expectations for the provision and oversight of care changed throughout the period covered by the scheme and have continued to evolve. Redress is not about condemning those who provided care in the past to the highest standards in line with legislation and policy of the time, doing their best to support and nurture children. Redress is about facing up to abuse suffered by children, about listening to them and acknowledging that what happened to them, tragically for some as a systematic part of their childhood, was abusive then, would be abusive now and should have been prevented.

Financial redress is about recognition and acknowledgement. While the financial payment is important, so too is how applicants are treated through the process and the broader support which will be offered to them. A statutory scheme allows for each of these elements to be considered, offers an alternative option for survivors and demonstrates public, united recognition and acknowledgment as a Government, a nation and a society.

The historical nature of the abuse in care settings means that many survivors are approaching the end of their life either through ill-health or age. Whilst the SCAI is continuing to progress its important work, the provision of appropriate forms of redress for survivors does not need to wait until the Inquiry has concluded. It is clear that survivors have been failed and there is an imperative to act.

1.3.2 Scotland's National Performance Framework

The Scottish Government's ambition for children and young people is that they grow up loved, safe and respected so that they realise their full potential. We know that for many of Scotland's most vulnerable children who were in care in the past, the reality was utterly different. Many children were failed by the institutions and systems entrusted to look after them, often leaving them with lifelong consequences.

Scotland is a country which fairly and compassionately supports those who have been harmed, and fully respects their rights to justice. Survivors of historical abuse in care have campaigned with dedication and perseverance for access to justice, improved accountability, and redress. Importantly, they want, and deserve, to be listened to, heard and believed. For too long, survivors of abuse were not acknowledged and the truth of their abuse neither accepted nor acted upon, for some compounding the effects of their childhood. The wrongs of the past must be addressed, financial redress is an important part of doing that.

This redress scheme is ambitious in its outcomes for survivors and ambitious in its vision for Scotland; as a nation that thoughtfully and compassionately responds to difficult truths and profound injustices and affirms the commitment to getting it right for every child, including those who are vulnerable, in the future.

Intervening to ensure survivors are able to access redress for the harm they have suffered helps to further the following outcomes in the National Performance Framework^[12]:

• People grow up loved, safe and respected so that they realise their full potential.
• People respect, protect and fulfil human rights and live free from discrimination.
• People live in communities that are inclusive, empowered, resilient and safe.