We have been working for the repeal of time limits in child abuse cases for decades since, in general, the courts do not treat survivors who wish to seek justice against their abuser through a civil claim compassionately.
The Law
Abuse claims are currently subject to the same time limits as personal injury claims, in that claimants have three years from the date of the occurrence, or – as is most typically the case in abuse cases – three years from the date they reach 18 years old.
For more than a decade, court litigation for prior sexual assault was permitted under a legislative loophole that permits personal damage claims to be filed three years after the so-called date of knowledge.
Child abuse lawyers were able to use the date of knowledge rule to argue that clients may have thought about speaking out for decades, and the date they spoke out and communicated the details of their abuse should be deemed the date of knowledge.
The House of Lords clarified the point of law in 2008 when it found that all abuse victims had knowledge at the time the abuse occurred. This means that arguments must be presented in all cases where a victim has been prevented from coming forward due to psychological pressures. All victims must make the case for “special circumstances,” which might be tough.
Justice Denied
In most civil cases, child abuse lawyers can use case law and a strong argument to obtain a limitation period extension from the courts; however, there are many cases where, after decades of silence and dealing internally with their experience, an abuse victim seeks justice through a civil claim only to discover that they are unable to proceed due to limitation periods. Physical abuse cases are very difficult to resolve in a timely manner, even when the abuse amounted to torture and excessive brutality.
There are numerous reasons why a child abuse victim may not be able to report their abuse for decades, which implies that the limitation period for child abuse claims is both punishing and short-sighted.
Years of Silence due to shame
When abuse occurs, many children speak up and report it, but they may only tell one person, and when nothing happens, they remain silent. They may believe, whether or wrongly, that if they report their abuser, they will not be believed. Many abuse survivors harbour sentiments of fear and shame about what occurred to them as children.
Many of these factors can lead to child abuse survivors only feeling comfortable coming out and disclosing what happened to them when they see or hear stories that their abuser is facing additional charges, as they believe they will be believed if they speak out.
The Campaign
Against this context, we should explore eliminating time limits in civil claims for child abuse, as current rules do not always take these causes of silence into consideration and are not always sympathetic to the coping process used by many survivors.
Simply put, after decades of feeling like they can’t speak up and won’t be believed, abuse survivors come to file a legal claim only to find out that the courts reject their claim due to a time limit.
There appears to be something very wrong with a legislation that closes the door on survivors of abuse because of time delays, especially when, in many cases, they were silenced as children following threats of violence, and worse, from their abuser. It’s the same as punishing them twice and endorsing the abuser’s threats at the time. Furthermore, as children, victims frequently try to speak up but are dismissed.
We are actively trying to rectify this position and implore the English courts to follow the lead of Scottish law, which recently changed to treat abuse survivors seeking justice through a civil suit with more sympathy.
The Scottish System
Scottish courts used to follow the same standards as English courts, with a three-year limitation period for anyone wishing to make civil claims for abuse. However, unlike English courts, Scottish courts used to be much less sympathetic to cases and reject a higher proportion of them before they even began.
Seeing this less sympathetic stance, the Scottish government tabled a Bill to eliminate the three-year time limit and allow claims for historical sexual assault. The Limitation (Child Abuse) (Scotland) Bill was passed into legislation by the Scottish Parliament in 2017 and has evolved since then.
As a result, there is a clash between Scottish and English law. There are also procedures in English law to eliminate time delays, as we will see below.
Stale Claims
The reason that time limitations apply in the first instance is that there is a fear that after three years, evidence may no longer exist and claims could be based on hearsay. However, in Scotland, as the law has changed, claims will be permitted to be brought without a time limit but this does not automatically mean that they will be successful. Claimants will still be expected to build a strong case and prove their claims with as much relevant evidence as possible. There is no reason why English legislation couldn’t change and adopt the same approach.
Independent Inquiry into Child Sexual Abuse
The Inquiry, set up by Teresa May when she was secretary, and chaired by Professor Jay, looked into many aspects of Child Abuse and split the subject matter into modules. One of them was called “Accountability and Reparations”, which looked into the systems of redress available to victims/survivors of child abuse. Several lawyers and Claimants who had experience of child abuse cases gave their views, inter alia, of the civil system. Limitation or Time Delay very much came into focus. The Inquiry recommended:-
Recommendation 15: Limitation The UK government should change the law to remove the time limit for victims and survivors of child sexual abuse to make a legal claim for compensation. These provisions should apply whether or not the current three-year period has already started to run or has expired, except where claims have been dismissed by a court or settled by agreement. The right to a fair trial should be expressly protected. These changes should not apply to claims brought on behalf of the estates of victims and survivors
It remains to be seen of course whether the Government agree to accept this recommendation and change the law. If so our campaign will have succeeded.
To help support the campaign to abolish time limits for civil claims in abuse cases, you should petition your MP by sending them your concerns. For help getting started with this, please contact Peter Garsden.
