Defendants’ burden in Scottish child abuse cases is extremely high - Graeme Watson
Graeme Watson says England should reflect on the effect of the Limitation (Childhood Abuse) (Scotland) Act before introducing its own legislation
Since the legislation came into force, the Scottish courts have dealt with many cases. The new legislation has been tested and clarified. The UK Government has recently consulted on reforming the law on limitation for abuse cases in England and Wales. No doubt it will take the Scottish experience into account. What can it learn?
In October 2022, the Independent Inquiry into Child Sexual Abuse (IICSA) in England and Wales issued its final report. The report recommended “removal of the three-year (time-bar) period for personal injury claims brought by survivors of child sexual abuse”. The last government commenced a consultation shortly before the election. The new government must now consider the responses and the options.
There are points of distinction between the Scottish experience and the English consultation. First, the consultation refers only to sexual abuse, consistent with the remit of IICSA. The Scottish legislation covers sexual, physical and emotional abuse and neglect.
Second, the consultation asks: “Should the burden of proof be reversed in child sexual abuse cases so that an action can proceed unless the defendant can satisfy the court that it is not possible for a fair hearing to take place or that he/she would be substantially prejudiced were the action to proceed?”
However, reversing the burden of proof would simply mean the onus would be on the defendant, rather than the claimant, to satisfy the court that an action should not proceed because of the passage of time. That is very different from allowing an action to proceed unless a fair trial is impossible. The Scottish approach was to remove the limitation period entirely, save for two specific exceptions. The court may prevent an action from continuing where a fair hearing is impossible or where the defender would be substantially prejudiced, with that prejudice outweighing the claimant’s interest in the action proceeding.
The courts have carefully considered both exceptions and found the hurdles are very high. On the fair hearing defence, the court has held “if met, it will usually be quite clear that the problems are insurmountable”. In practice, that has meant a fair trial will be impossible only where an alleged abuser had died before allegations could be put to them. Even then, the exception might not apply if the abuse was systemic, rather than by an individual, in secret. On substantial prejudice, the court considered the balancing exercise and held that, “it is hard to figure a case of alleged childhood abuse where the claimant’s interest in the action proceeding is not worthy of considerable weight”.
The UK Government should take time to reflect on the Scottish experience. The law in England and Wales already allows claims to proceed if litigated beyond the three-year period if the court finds it equitable to do so. The Scottish Government initially noted this approach was more favourable to claimants than the equivalent then in place in Scotland. But rather than enacting legislation that achieved a better balance, they have created a situation where the burden on defenders is extremely high. Westminster may want to think long and hard before amending current provisions.
Graeme Watson is a Partner at Clyde & Co