Guide to Child Abuse Compensation Claims

Transcription

1 Guide to Child Abuse Compensation Claims Second Edition Elizabeth-Anne Gumbel QC Justin Levinson Malcolm Johnson Richard Scorer

2 Published by Jordan Publishing Limited 21 St Thomas Street Bristol BS1 6JS Whilst the publishers and the author have taken every care in preparing the material included in this work, any statements made as to the legal or other implications of any transaction, any particular method of litigation or any kind of compensation claim are made in good faith purely for general guidance and cannot be regarded as a substitute for professional advice. Consequently, no liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in this work. Jordan Publishing Limited 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Crown Copyright material is reproduced with kind permission of the Controller of Her Majesty s Stationery Office. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN Typeset by Letterpart Ltd, Reigate, Surrey Printed in Great Britain by CPI Antony Rowe, Chippenham, Wiltshire

3 CONTENTS Acknowledgments Foreword Association of Personal Injury Lawyers (APIL) Table of Cases Table of Statutes Table of Statutory Instruments v vii ix xix xxix xxxvii Chapter 1 The Background and History of Abuse Claims 1 The background to civil claims 1 The inquiries 2 Wolfenden Report Disturbances at the Carlton Approved School on 29 and 30 August Administration of punishment at Court Lees Approved School Report into child abuse in Cleveland Other inquiries following Cleveland 4 Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974 (2000) 5 The Nolan Report The Victoria Climbié inquiry report of an inquiry by Lord Laming January The Protection of Children in England: a progress report by Lord Laming March The police investigations and the arrival of large scale compensation claims 7 The Home Affairs Committee Report of The issues in civil claims 8 Chapter 2 The Statutory Framework 11 Introduction 11 The law on the care system 12 Guidance documents 13 The development of modern childcare legislation 15 The Children and Young Persons Act

4 xii APIL Guide to Child Abuse Compensation Claims The Children Act Boarding out 18 Children s homes 18 Approved schools 20 The Children and Young Persons Acts 1963 and Children s homes under the Children and Young Persons Act Punishment in children s homes 26 Local Authority (Social Services) Act The Children Act Wardship 27 The Child Care Act The Children Act A general overview of the 1989 Act 28 Specific duties under the 1989 Act 29 The criteria for care and investigation 30 Statutory instruments 31 Children s homes since the Children Act Community, voluntary and registered homes 33 Other types of accommodation and situations 34 Voluntary organisations 34 Foster care 35 Introduction 35 Foster care prior to the Children Act Foster care following the Children Act Adoption 37 Children in the healthcare system 39 The basic structure 39 Disabled children 39 Children with mental health problems 40 Child minding, daycare and clubs 40 Children in detention and secure accommodation 41 The penal system for children 41 Secure accommodation 43 Children in the education system 44 The duty to educate 44 Educational discipline 46 Children with special educational needs and physical disabilities 47 Childcare legislation since the Children Act Introduction 48 The Care Standards Act The Children (Leaving Care) Act The Adoption and Children Act The Children Act The Childcare Act The Children and Adoption Act The Children and Young Persons Act

5 Contents xiii The Health and Social Care Act Other statutes for the protection of children 58 Education Act Homelessness Act Nationality, Immigration and Asylum Act Health and Social Care (Community Health and Standards) Act Area child protection committees, child protection conferences, plans and registers and the integrated children s system 59 Area child protection committees 59 Child Protection Conferences, plans and registers 60 The Integrated Children s System 61 Offences against children 61 The main offences 61 Abortion and infanticide 63 Sexual offences against children 63 The Sexual Offences Act Female Genital Mutilation Act Asylum and Immigration (Treatment of Claimants etc) Act The Forced Marriage (Civil Protection) Act The Criminal Justice and Immigration Act Policing and Crime Act Coroners and Justice Act Other offences against children 66 The disqualification and registration of persons working with children 66 Introduction 66 List 99 and the Department of Health Consultancy Index 67 Statutory provisions for child protection checks and disqualification prior to the Safeguarding Vulnerable Persons Act The Safeguarding Vulnerable Groups Act The rights of a child 76 Introduction 76 Parental chastisement and punishment of children 76 Right to refuse medical treatment 77 Employment rights 78 Court appointed childcare officers 78 International treaties on children 79 Complaints procedures 80 Chapter 3 Causes of Action 83 The importance of identifying the cause of action 83 The steps required to identify the cause of action 84 Step 1 identifying the allegations of abuse 84 Step 2 identifying the responsible person or institution 84

6 xiv APIL Guide to Child Abuse Compensation Claims Step 3 identifying the potential defendant 85 Step 4 identifying the sources of documents for disclosure 86 Step 5 assessing the merits of the possible causes of action 86 Trespass/breach of duty 86 Introduction 86 Vicarious liability for trespass/breach of duty 87 Breach of statutory duty 93 Common law duty of care 97 The distinction between direct duty and vicarious liability 97 The elements of common law duty of care 98 Children in the community 106 Misfeasance in public office 110 Other causes of action 114 The Wilkinson v Downton type claim 114 The Protection from Harassment Act The Human Rights Act Chapter 4 Causation and Damage 129 Introduction 129 Causation of damage 130 Criminal offences 133 Aggravated damages 136 Quantification of general damages 139 Various Claimants v Leicestershire County Council 139 Sargent v Sargent 140 B (a child) v D 141 Various Claimants v Flintshire County Council 141 Various claimants v Bryn Alyn (Holdings) Limited 142 Stacey-Kemp v Maplewell Hall School Governors 145 CvD 145 Pierce v Doncaster Metropolitan Borough Council 146 MB v LB Ealing 147 B v Quirk 147 GvS 148 MAGA v the trustees of the Birmingham Archdiocese of the Roman Catholic Church 150 AB and others (JA, JPM, RM) v the Nugent Care Society (formerly Catholic Social Services, Liverpool) 151 BJM v Eyre, Hawthorne, Loram & Riley 153 Loss of earnings/earning capacity 155 Cost of medical treatment 158 Cost of care 160 Loss of familial support 160 Wasted expenditure on alcohol 161 Damages under the Human Rights Act

7 Contents xv Chapter 5 Limitation 167 Introduction 167 Developments in the law of limitation through the child abuse claims 170 Limitation as a preliminary issue 180 Disability 184 The statutory position 184 Children 185 Capacity 185 Chapter 6 Claims Against the Church 193 Introduction 193 Suing the right defendant 193 Suing the abuser 193 Suing the religious organisation 194 Suing the employer 196 Vicarious liability 197 Is the relationship between a priest and bishop capable of giving rise to vicarious liability? 197 The relationship between a Roman Catholic priest and his bishop 201 Assuming a relationship of employment or similar can be shown, was the abuse sufficiently connected to the priest s duties as to give rise to vicarious liability? 206 The relevance of matters discussed in confession 210 Disclosure 210 Chapter 7 Criminal Injuries Compensation 213 Introduction 213 The various schemes 213 Making the application 214 Initial enquiries by the authority 215 The two year time limit 215 The 2008 Scheme 215 Caselaw 217 R v CICB, ex parte Wilson 217 R v Criminal Injuries Compensation Board ex parte A 217 R v CICB, ex parte D 218 R v Criminal Injuries Compensation Board ex parte Delarmi 219 R (VA) v CICAP 220 The Authority s annual reports 220 Criminal injury, crimes of violence and consent 225 The 2008 Scheme 225 Secondary victims 225 Consent 226

8 xvi APIL Guide to Child Abuse Compensation Claims Reduction or withholding of an award 230 The 2008 Scheme 230 Failure to take reasonable steps or to co-operate with the police 230 Failure to give reasonable assistance to the Authority 233 The conduct of the applicant and criminal convictions 233 Injuries suffered before 1 August 1964 and the pre 1979 abuse rule 234 Non consensual penetration penile and non-penile 236 Expert evidence 237 The tariff awards 238 Changes to the tariff in the 2008 Scheme 238 The separate categories of sexual offence tariffs 239 Multiple awards 239 Compensation for special expenses 242 The relationship between the authority and the civil compensation system 246 Acceleration and exacerbation 248 Failure on the part of a local authority to make a CICA application on behalf of a child 249 Chapter 8 Evidence and Experts 253 Evidence 253 The standard of proof required in child abuse compensation claims 253 Disclosure in child abuse cases 254 The claimant s statutory rights to disclosure 254 The law prior to the Data Protection Act The Data Protection Act Durant v Financial Services Authority 256 Redaction of files 258 Exempt information under the Data Protection Act The Caldicott principles 261 How long do records have to be kept? 262 What are the implications when the notes are lost or incomplete? 264 What are the claimant s statutory rights in relation to non personal data? 265 The Freedom of Information Act Other statutes relating to non personal records 267 The Public Records Act Where are the sources of these records? 270 What standards exist for the keeping of social services records? 271 Core standards 271 The history of record keeping by social services 271 Foster care 272 Children s homes 272

9 Contents xvii All children in care/looked after by the local authority no matter where accommodated 273 Adoption 274 General policy 274 Lessons learned on records keeping 274 Types of reports 276 Serious Case Reviews 276 Disclosure before proceedings start 277 Disclosure after proceedings start standard and specific disclosure 280 Part 18 requests 281 Specific categories of evidence 284 Similar fact evidence 284 Evidence from public and other inquiries 286 Anonymity and disclosure of records from the criminal and family courts 287 Anonymity 287 Disclosure from the family and criminal courts 289 Children Act 1989 section 7 and section 37 reports 291 Public interest immunity 291 Making an application to the family courts 293 Criminal records and other types of checks 295 Disclosure from the police and the Crown Prosecution Service 295 Costs 297 Subsequent use of disclosed documents in another case 297 Disclosure of criminal injuries compensation authority papers in the civil claim 298 The involvement of the police and criminal investigations 299 Access to records and disclosure 300 The Child Exploitation Online Protection Centre (CEOPC) 300 Newspaper reports and other sources 301 Experts 302 Social care experts 302 Psychiatrists/psychologists 302 Physical injuries 303 How to instruct the expert 304 Comments by the judiciary on experts 304 Chapter 9 Miscellaneous Points 307 Finding the correct Defendant and insurance 307 Claims against limited companies, the state and local authorities 307 Insurance 308 Bankruptcy 308 Part 20 Defendants and Co-Defendants 309 Abuse taking place in a motor vehicle 311 Criminal compensation orders 313

10 xviii APIL Guide to Child Abuse Compensation Claims Chapter 10 Funding and Enforcement 317 Funding for abuse compensation claims introduction 317 Public funding the role of the Legal Services Commission 317 Introduction 317 The law and regulations relating to public funding 319 The Funding Code categories section 5 and section 8 criteria 320 Section 8 claims against public authorities 321 Significant wider public interest 322 Overwhelming importance to the client 322 Significant human rights issues 323 Section 5 the General Funding Code 323 Investigative help and full representation introduction 325 Investigative help 325 Full representation 327 Withdrawal of funding 327 The 2010 Civil Contract 329 Human rights cases 329 Enforcement 329 Can defendants in abuse compensation claims obtain public funding? 329 Helpful tips 330 Assessing prospects of success 330 Failure to take into care cases 331 Assessing costs/benefit 332 Other factors 333 Conditional fee agreements, legal expenses insurance and risk assessments 333 Enforcement 334 The issue of enforcement in abuse compensation claims introduction 334 Locating the defendant 335 Ascertaining the defendant s means 336 Other claimants and creditors 337 Getting to final judgment faster 339 Freezing injunctions 339 Other forms of enforcement 342 Cross border litigation and enforcement 343 Appendix Recommended Reading 345 Index 347