Publication - Consultation analysis

Financial redress for historical child abuse in care: consultation analysis

Analysis of responses to the pre-legislative consultation on the detailed design of a statutory redress scheme for historical child abuse in care.

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177 page PDF

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Contents
Financial redress for historical child abuse in care: consultation analysis
4. Eligibility – definitions and exclusions (Q3–Q8)

177 page PDF

1.5 MB

4. Eligibility – definitions and exclusions (Q3–Q8)

4.1 The consultation paper proposed that the definition of ‘in care’ should be based on two criteria: (first) that the abuse should have occurred within an eligible residential setting (namely those settings included in the definition of ‘children in care’ in the Terms of Reference of the Scottish Child Abuse Inquiry) and (additionally) that the institution or body in question should have had ‘long-term responsibility’ for the applicant ‘in place of the parent’. It went on to explain that this means that not all those who are covered by the Terms of Reference of the Inquiry would be eligible for the redress scheme, for example individuals who were abused in certain institutional settings (such as fee paying boarding schools or hospitals) would not be eligible for the scheme if their parents retained long-term responsibility for them. The consultation sought views on these eligibility criteria and on two related issues: the definition of abuse in general and the ‘cut-off’ date for the definition of ‘historical’ abuse.

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.

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 / Unsure] Please explain your answer.

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]

Key points

  • Overall, 79% of respondents agreed with the proposal to limit eligibility for financial redress to situations in which institutions and bodies had ‘long term responsibility for the child in place of the parent’. However, while 85% of individuals agreed, the same was true of only 46% of organisational respondents.
  • Those who disagreed typically thought that key elements of the proposal required additional clarification or definition or simply believed that eligibility should not be dependent on the length of time spent in care.
  • There was also concern that the proposed approach might exclude those who experienced abuse in settings (such as fee-paying boarding schools or hospitals) where the authorities exercised considerable influence and control over key aspects of the child’s life and wellbeing, even if parents retained formal responsibility.
  • Around three-quarters of respondents (74%) agreed that the list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference. Organisations were slightly more likely than individuals to agree, while a relatively high proportion of individuals (18%) were unsure on this point.
  • Some respondents were in favour of consistency with the Terms of Reference but wanted to confirm that any further changes to these would also apply to the redress scheme.
  • Occasionally, respondents explicitly suggested that eligibility for the scheme should be wider than that implied by the terms of reference of the Scottish Child Abuse Inquiry
  • There was only limited support for the specific proposals to exclude those abused in fee-paying boarding schools (44%) and hospitals (40%) from the scheme, with respondents repeating concerns that these proposals would unfairly or arbitrarily exclude some groups of victims / survivors from the scheme.
  • There was a high degree of consensus around the proposed definition of abuse (supported by 94% of respondents). This was seen as comprehensive, and alignment with the Limitation (Child Abuse) (Scotland) Act 2017 was welcomed.
  • Views were more mixed in relation to the question of what should constitute ‘historical’ abuse. Overall, 61% agreed with the proposed cut-off date of 1 December 2004. Those who disagreed (or were unsure) were mainly concerned about the implications for those who had suffered abuse since 2004. Some respondents (especially individuals) found this question difficult to understand or to answer.

Defining ‘in care’ (Q3–Q6)

4.2 Three questions asked about the definition of ‘in care’ and each is discussed below.

Having long term responsibility for the child in place of the parent (Q3)

4.3 Question 3 asked for views on the proposal to limit eligibility for financial redress to situations in which institutions and bodies had long term responsibility for the child in place of the parent. As Table 4.1 indicates, 79% of respondents overall agreed with this approach. However, there were differences between organisations and individuals on this question: whilst 85% of individuals agreed, the same was true of only 46% of organisational respondents.

Table 4.1: Q3 – 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?
Respondent type Yes No Unsure Total
n % n % n % n %
Local authority / public sector partnerships 6 55% 3 27% 2 18% 11 100%
Other public sector organisations 2 50% 1 25% 1 25% 4 100%
Current or previous care providers 5 56% 3 33% 1 11% 9 100%
Third sector, including survivor groups 3 43% 3 43% 1 14% 7 100%
Legal sector organisations 1 20% 3 60% 1 20% 5 100%
Other organisational respondents 1 33% 2 67% 0% 3 100%
Total organisations 18 46% 15 38% 6 15% 39 100%
Individual respondents 191 85% 12 5% 21 9% 224 100%
Total (organisations and individuals) 209 79% 27 10% 27 10% 263 100%

One individual ticked ‘yes’ and ‘no’ in response to this question and two ticked ‘yes’ and ‘unsure’. These three responses are not included in the table above.

4.4 In total, 139 respondents (104 individuals and 35 organisations) provided further comments. Individuals agreeing with the proposed approach tended to highlight the failings of institutions and bodies to discharge their responsibilities appropriately – in short, explaining why authorities with such long-term responsibilities should be held accountable, rather than why eligibility should be explicitly restricted to such circumstances.

4.5 Those who disagreed with the proposed approach tended to do so either because they considered that key elements (such as ‘long-term responsibility’, ‘eligible residential setting’ or ‘in place of the parent’) required additional clarification or definition or, more commonly, because they simply believed there should be no suggestion that eligibility should be dependent on the length of time spent in care. A recurrent theme here was that regardless of the length of time spent in an institution, the consequences of abuse could be extremely detrimental and long-standing.

4.6 Some respondents were concerned that the proposed approach might unreasonably or unfairly limit eligibility by excluding those who experienced abuse in settings in which the relevant authorities may not formally have had ‘long-term responsibility in place of the parent’ (such as fee-paying boarding schools or hospitals) but, in practice, exercised day-to-day influence and control over key aspects of the child’s life and wellbeing. The child’s corresponding lack of control and potential vulnerability was also noted in this context. (These concerns are reflected more fully in the responses to Questions 5 and 6.) Others simply argued that the scheme should be as inclusive as possible.

4.7 In addition to these general concerns about the notion of ‘long-term responsibility’, occasionally, it was also occasionally suggested that the specific reference to ‘moral responsibility’ was insufficiently precise and / or anachronistic.

Residential settings in the SCAI Terms of Reference (Q4)

4.8 Question 4 asked for views on the proposal to limit eligibility for financial redress to the same list of institutions used in SCAI’s Terms of Reference – subject to the institution having long-term responsibility for the child. Table 4.2 shows that, overall, 74% of respondents agreed with this proposal. The proportion agreeing was slightly higher among organisational respondents than among individuals (85% vs 72%). There was also some evidence of uncertainty among individuals in relation to this issue – indeed the proportion who were unsure (18%) was higher than the proportion indicating disagreement (10%). It is also notable that all 12 responding local authorities / public sector partnerships agreed with the proposed list.

Table 4.2: Q4 – 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?
Respondent type Yes No Unsure Total
n % n % n % n %
Local authority / public sector partnerships 12 100% 0% 0% 12 100%
Other public sector organisations 3 75% 0% 1 25% 4 100%
Current or previous care providers 8 89% 0% 1 11% 9 100%
Third sector, including survivor groups 5 83% 1 17% 0% 6 100%
Legal sector organisations 3 60% 2 40% 0% 5 100%
Other organisational respondents 2 67% 0% 1 33% 3 100%
Total organisations 33 85% 3 8% 3 8% 39 100%
Individual respondents 157 72% 22 10% 40 18% 219 100%
Total (organisations and individuals) 190 74% 25 10% 43 17% 258 100%

Four respondents – one organisation and three individuals – ticked both ‘yes’ and ‘unsure’ in response to this question. These responses are not included in the table above.

Percentages may not total 100% due to rounding.

4.9 Altogether, 118 respondents (91 individuals and 27 organisations) provided further comment at Question 4.

4.10 Some of the uncertainty in responses to the closed question on this topic may reflect a lack of knowledge or awareness (particularly among individual respondents) of the residential settings included in the SCAI’s Terms of Reference. In this context, some individual respondents were concerned to establish that specific (named) institutions would be included in such a list.

4.11 Other respondents (both individuals and organisations) were in favour of ensuring consistency with the Terms of Reference but, as these have been widened since the Inquiry was established, wanted to confirm that any further changes would also apply to the redress scheme.

4.12 Occasionally, respondents explicitly suggested that eligibility for the scheme should be wider than that implied by the terms of reference of the Scottish Child Abuse Inquiry – including, for example, children abused within kinship care arrangements – or returned to the theme of not restricting eligibility to those abused in residential settings where institutions and bodies had ‘long-term responsibility for the care of the child in place of the parent’ (see Question 1).

Proposed exclusion of abuse in fee-paying boarding schools (Q5)

4.13 Question 5 asked for views about whether eligibility for financial redress should exclude those who were abused in fee-paying boarding schools.

4.14 Not surprisingly, given the views already outlined in relation to Question 1, the proposed exclusion of abuse in fee-paying boarding schools had only limited support among respondents. Table 4.3 shows that fewer than half of all respondents (44%) agreed with this aspect of the proposed eligibility criteria. Of the remainder, 39% disagreed and 18% were unsure. Organisational respondents were slightly more likely than individuals to disagree (45% vs 38%).

Table 4.3: Q5 – 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?
Respondent type Yes No Unsure Total
n % n % n % n %
Local authority / public sector partnerships 6 55% 4 36% 1 9% 11 100%
Other public sector organisations 1 25% 1 25% 2 50% 4 100%
Current or previous care providers 4 50% 3 38% 1 13% 8 100%
Third sector, including survivor groups 1 14% 4 57% 2 29% 7 100%
Legal sector organisations 1 14% 4 57% 2 29% 7 100%
Other organisational respondents 1 33% 2 67% 0% 3 100%
Total organisations 14 35% 18 45% 8 20% 40 100%
Individual respondents 98 45% 82 38% 37 17% 217 100%
Total (organisations and individuals) 112 44% 100 39% 45 18% 257 100%

One individual ticked ‘yes’ and ‘unsure’ in response to this question, and three individuals ticked ‘no’ and ‘unsure’. These four responses are not included in the table above.

Percentages may not total 100% due to rounding.

4.15 This question attracted additional comment from 183 respondents (149 individuals and 34 organisations).

4.16 Among those who agreed with the proposed exclusion, three main themes were apparent. The first was the suggestion that parents had generally chosen to place their children in fee-paying educational institutions and would have had regular contact and retained formal responsibility for them during their time there. Linked to this was the (sometime implicit) argument that children in such settings had various avenues open to them to report abuse and that their parents could have withdrawn them from the school in the light of any such concerns. This was sometimes contrasted – particularly by individual respondents – with the situation of children in care, who were seen as having no-one to turn to and a complete absence of choice or control. Individual respondents sometimes drew on their own experience to illustrate this sense of having no-one to turn to.

4.17 A second theme was that the scheme should be focused on securing redress for those who experienced abuse ‘in care’ and that, as the state did not have direct responsibility for fee-paying boarding schools, such settings should not be considered part of that system.

4.18 The third main theme in support of the proposed exclusion was that victims of abuse within fee-paying boarding schools have (or should have) alternative routes to redress open to them. Some respondents suggested, for example, that allegations of such abuse should be taken up directly with the institutions involved, while others suggested that redress could or should be sought through the civil courts. Occasionally, respondents proposed that a separate scheme be established for victims of abuse in such settings; there was also an alternative suggestion that this group of victims could be eligible for a Stage One payment with further redress then sought through other channels (unless all parties agreed that the scheme offered an appropriate alternative route to justice).

4.19 Among those who disagreed with the proposed exclusion, the most fundamental argument – and one of the most common, among both individuals and organisations – was that all abuse should be treated equally. Multiple respondents used the phrase ‘abuse is abuse’ in this context. Some elaborated on this theme, arguing that the impacts of abuse are the same wherever it occurs or that all victims should have an equal right to redress.

4.20 A related but slightly different argument was that, even if parents nominally retained responsibility for their child, fee-paying boarding schools had a clear duty of care or were, in practice, acting ‘in loco parentis’. Some considered that such institutions actually met the criterion of having ‘long-term responsibility for the child in place of the parent’ and thus should be included on this basis within the proposed scope of the scheme. Other respondents focused less on the question of parental responsibility and more on the lack of power and control experienced by children themselves in such settings.

4.21 A number of other points were made less frequently:

  • It was argued that not all parents were able to exercise choice in sending their children to fee-paying boarding schools because of parental employment abroad for the state (e.g. in the military or on diplomatic missions). In such cases, the fees may even have been paid by the state.
  • More generally, a distinction was drawn between children whose places at such institutions were funded by the local authority and those who were privately funded.
  • The point was also made that, because local educational authorities were responsible for inspecting fee-paying boarding schools, the state was effectively responsible for ensuring the safety of children within them.

Proposed exclusion of abuse in hospital (Q6)

4.22 Question 6 asked for views about whether experiences of abuse in hospital should be excluded from the financial redress scheme.

4.23 As Table 4.4 indicates, there were mixed views on this proposal, which was supported by only a minority of respondents (40%) overall. The level of agreement was, however, higher among individual than organisational respondents (42% compared with 33%), while over half of organisational respondents (53%) actively disagreed with the proposal. Around one in five respondents overall (21%) indicated that they were unsure about the merits of the proposal.

Table 4.4: Q6 – 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?
Respondent type Yes No Unsure Total
n % n % n % n %
Local authority / public sector partnerships 6 55% 3 27% 2 18% 11 100%
Other public sector organisations 1 25% 3 75% 0% 4 100%
Current or previous care providers 3 38% 4 50% 1 13% 8 100%
Third sector, including survivor groups 2 29% 5 71% 0% 7 100%
Legal sector organisations 1 14% 4 57% 2 29% 7 100%
Other organisational respondents 0% 2 67% 1 33% 3 100%
Total organisations 13 33% 21 53% 6 15% 40 100%
Individual respondents 92 42% 80 36% 48 22% 220 100%
Total (organisations and individuals) 105 40% 101 39% 54 21% 260 100%

Two individuals ticked ‘no’ and ‘unsure’ in response to this question. These responses are not included in the table above.

Percentages may not total 100% due to rounding.

4.24 This question attracted additional comment from 168 respondents (132 individuals and 36 organisations). Not surprisingly, the themes evident in the comments were similar to those relating to the proposed exclusion of children abused in fee-paying boarding schools (see Question 5) – indeed, some respondents referred directly to their previous comments in this context. Those who disagreed with the proposal generally provided fuller responses.

4.25 Among those who agreed with the proposed exclusion (and particularly individual respondents), the most common view was that parents retained responsibility for their children during such stays in hospital settings and that the parent and / or child would (or should) be able to pursue compensation or redress through existing legal channels – for example, by suing the hospital or health board concerned – or through the establishment of a separate scheme.

4.26 Some of those who agreed with the proposal simply indicated that the experiences of those abused in hospital settings lie outside the remit or purpose of the scheme, or should do – suggesting, for example, that eligibility should be limited to those who had no parental representation or guardianship in place to oversee questions of welfare. Again, some individual respondents sought to contrast the degree of contact and oversight that parents were able to offer their children in hospital with that available to children in residential care settings.

4.27 Others argued in more specific terms that hospitals were very different environments from residential care settings and / or that medical staff did not have any long-term responsibility for the overall welfare of the child – largely using language from the consultation paper to explain why such an exclusion would be valid. The point was also made that, whilst there have been cases of abuse in hospitals in the past, practices that would reduce the risk of abuse (such as parents staying overnight with their child) have been introduced in Scotland over several decades.

4.28 Among those who disagreed with the proposed exclusion of those abused in hospital settings (and especially among individual respondents) the most common theme – as at Question 5 – was simply that ‘abuse is abuse’. This was frequently elaborated by reference to the fact that the impacts of abuse can be hugely damaging wherever it occurs, regardless of length of residential stay, and it was widely held that all those who experienced victimisation in institutional settings should be treated equally. Some individuals pointed to the vulnerability of children in such settings and / or referred specifically to the Savile case[3] to illustrate the risks of abuse within hospitals.

4.29 A further set of arguments (mainly put forward by organisational respondents) sought to justify the inclusion of such instances of abuse through direct or indirect reference to the proposed purpose of the scheme and, in particular, the theme of responsibility for the child. Respondents made a number of related arguments in this context:

  • In practice, parents were generally not present, could not know what was happening and were not in a position to exercise responsibility for their child, and so had effectively delegated responsibility to the hospital staff.
  • The power differentials which existed between medical professionals and many families made it difficult to challenge decisions or to exercise parental authority, even where it existed in principle. Consequently, in the case of decision-making about medical treatment, the state had a significant role or power in determining the placement of the child.
  • As statutory authorities subject to inspection and regulation by the state, health boards and hospitals had an explicit responsibility to ensure the safety of children within the system.
  • While hospitals may not have had ‘long-term responsibility’ for the welfare of the child, they had a clear duty of care.

4.30 Some organisational respondents expressed concern – possibly based on a misunderstanding – that those placed in learning disability or psychiatric hospitals with parental consent would be excluded from the scheme. In fact, the Terms of Reference for the SCAI, and hence the proposed eligibility for the scheme, explicitly include long-term health care establishments or institutions.

4.31 However, this specific issue relates to a wider concern – articulated by some respondents in relation to both Question 5 and Question 6 – that specific groups might find themselves unfairly (or illegally) excluded from the scheme, on the basis of an atypical pathway into residential care or that the relevant authorities did not clearly assume long-term responsibility for the child in place of the parent. It was argued that this might mean that individuals with similar experiences of abuse might find themselves in very different situations in terms of opportunities for redress.

Defining ‘abuse’ (Q7)

4.32 The Scottish Government intends to use the same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 for the purpose of defining eligibility for the financial redress scheme. This includes sexual, physical and emotional abuse and abuse that takes the form of neglect. Question 7 asked respondents if they agreed this definition should be used.

4.33 Table 4.5 shows that there was a very high level of agreement among both individual and organisational respondents (94% and 91%, respectively) that, for the purpose of the financial redress scheme, this definition of abuse should be used.

Table 4.5: Q7 – 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?
Respondent type Yes No Unsure Total
n % n % n % n %
Local authority / public sector partnerships 13 100% 0% 0% 13 100%
Other public sector organisations 4 100% 0% 0% 4 100%
Current or previous care providers 7 78% 2 22% 0% 9 100%
Third sector, including survivor groups 7 100% 0% 0% 7 100%
Legal sector organisations 6 86% 1 14% 0% 7 100%
Other organisational respondents 2 67% 0% 1 33% 3 100%
Total organisations 39 91% 3 7% 1 2% 43 100%
Individual respondents 215 94% 5 2% 8 4% 228 100%
Total (organisations and individuals) 254 94% 8 3% 9 3% 271 100%

Percentages may not total 100% due to rounding.

4.34 Additional comment was provided at Question 7 by 147 respondents (117 individuals and 30 organisations).

4.35 Those who agreed with the proposed definition commonly welcomed the recognition that abuse takes a variety of forms, and that all have damaging, long-term impacts and should be treated equally. Some individual respondents drew on their own experiences to illustrate these broader dimensions and consequences of abuse.

4.36 Respondents also commented positively on other aspects of the framing of the definition – for example, on the fact that it was comprehensive and potentially inclusive of all forms of abuse; or that the wording was clear, succinct or self-explanatory.

4.37 The consistency of definition with the Limitation (Childhood Abuse) (Scotland) Act 2017 was welcomed by several respondents as it was thought that this would aid clarity of definition and harmonisation across the system as a whole. More specifically, there was a suggestion that, as the redress scheme is intended as an alternative to civil litigation, the proposed alignment with the 2017 Act makes sense. However, there was another view that the definition of abuse used in the redress scheme should be aligned with the SCAI Terms of Reference (as at Question 4), rather than the 2017 Act.

4.38 Although it was unusual for respondents to disagree actively with the proposed definition of abuse, some of those who indicated at the closed question that they agreed with or were unsure about the definition also identified some concerns. In the analysis that follows, these have been combined with comments from those who disagreed. The main concerns about the definition expressed were as follows:

  • Some individuals mentioned additional themes or concepts that they believed should be referred to within the definition, including morality, enslavement, torture and medical abuse.
  • Some organisational respondents argued that the definition of abuse would be strengthened by the further or explicit definition of key concepts, such as ‘emotional abuse’ – a term described as ‘vague’ and ‘undefined’.
  • Some organisations expressed concern about the scope of the definition, arguing that it had simply been drawn too widely, or that, by including neglect, potentially extends the definition from ‘intentional acts’ to ‘unintentional omissions’. This contrasts with the views of those, noted above, who welcomed the inclusive character of the proposed definition.
  • Among those who answered ‘unsure’ at Question 7, the point was also made that there is scope for shifting societal norms to have an impact upon definitions of abuse – for example, in relation to the acceptability of corporal punishment at different points in time.

Defining ‘historical’ abuse (Q8)

4.39 The consultation paper outlined a proposal to take 1 December 2004 – the date on which then First Minister Jack McConnell made a public apology endorsed by the Scottish Parliament for the harm suffered by children in care – as the cut-off point to define ‘historical’ abuse. Question 8 invited views on this proposal.

4.40 Table 4.6 shows that a majority of both individual (63%) and organisational respondents (54%) to this question agreed with this proposal. However, around one in five all those responding (22%) were unsure about this issue – a larger proportion than those actively disagreeing (17%).

Table 4.6: Q8 – Do you agree that 1 December 2004 represents an appropriate date to define ‘historical’ abuse for this financial redress scheme?
Yes No Unsure Total
Respondent type n % n % n % n %
Local authority / public sector partnerships 8 73% 1 9% 2 18% 11 100%
Other public sector organisations 2 40% 2 40% 1 20% 5 100%
Current or previous care providers 6 67% 1 11% 2 22% 9 100%
Third sector, including survivor groups 3 43% 3 43% 1 14% 7 100%
Legal sector organisations 1 17% 3 50% 2 33% 6 100%
Other organisational respondents 2 67% 0% 1 33% 3 100%
Total organisations 22 54% 10 24% 9 22% 41 100%
Individual respondents 136 63% 34 16% 47 22% 217 100%
Total (organisations and individuals) 158 61% 44 17% 56 22% 258 100%

One individual ticked ‘yes’ and ‘no’ to this question; one ticked ‘yes’ and ‘unsure’; and one ticked ‘no’ and ‘unsure’. These three responses are not included in the table above.

Percentages may not total 100% due to rounding.

4.41 Additional comments were provided by 152 respondents (116 individuals and 36 organisations). It is worth noting that some individual respondents said that they found the question difficult to understand, that they lacked the necessary information or felt insufficiently qualified to offer an opinion. It was clear, too, that some individuals had misunderstood the question: having indicated in the closed question that they disagreed with the proposed date, their open text responses suggested that they thought this meant that those who had experienced abuse before this date would be ineligible for the scheme.

4.42 Those who agreed with the proposed cut-off date did so for a variety of reasons. Some (particularly among individual respondents) simply indicated that they considered it to be ‘fair’, ‘reasonable’ or ‘appropriate’ without giving any further explanation, or they emphasised the importance of publishing clear timelines governing eligibility for the scheme. Others explicitly referred to aspects of the rationale outlined in the consultation paper itself – for example, the fact that 2004 was the point at which the failings of the state were first acknowledged in the Scottish Parliament and the start of a process of recognition, regulatory improvement and redress. As such, some individual respondents believed that a 2004 cut-off date was appropriate as a means of offering a degree of ‘closure’ to victims of historical abuse.

4.43 One organisational respondent said that a date prior to the commencement of the scheme would be appropriate, given the purpose of the scheme, the fact that evidence should be more readily available in relation to recent instances of child abuse and the removal of the usual time limits for bringing civil claims for child abuse.

4.44 Some respondents explicitly suggested that 2004 marked an appropriate cut-off point as most cases of abuse occurred before that date or because much more effective protections were now in place and evidence should be more readily available in relation to recent instances of child abuse. It was also suggested that more recent victims of abuse would have other means of redress open to them.

4.45 Among those who disagreed with or were unsure about the proposed date, the principal concern – among both individuals and organisations – related to the implications for those who have suffered abuse since 2004. Sometimes this was simply framed in terms of the need to acknowledge and respond to abuse – and its impacts – regardless of when it occurred. Other respondents argued that, while there have been system-wide improvements in child protection since 2004, child abuse within care settings has not been eradicated. There was also a wider concern about potential inequities for those abused since 2004. In this context, there was a suggestion that the imposition of an arbitrary cut-off date for eligibility could adversely affect the standing of the scheme in light of the commitment to ‘honesty, decency, trust and integrity’ in its guiding principles.

4.46 Some (largely individual) respondents maintained that there should simply be no cut-off date in relation to eligibility for the scheme. Others (including some organisational respondents) accepted the need for a cut-off date but argued that it should be later. Suggestions here included: (i) December 2014, to bring the scheme into line with the timeframe for evidence of abuse to the SCAI; (ii) 2019, which marked the publication of Professor Kenneth Norrie’s report on the legislative and regulatory framework governing children in care in Scotland from 1900 to date; and (iii) 2022, as this was believed to be a likely end date for the SCAI.

4.47 Occasionally, respondents queried the usefulness or appropriateness of the word ‘historical’, and the decision of the SCAI to drop the term from its own work was highlighted in this context.

4.48 Some respondents (especially organisations) suggested that there was an insufficiently clear rationale for the proposed cut-off date of 2004. Others put this more strongly, describing the choice of 2004 as arbitrary, confusing or illogical. One suggestion was that the application of a 2004 cut-off date would require evidence of the effectiveness – in terms of preventing abuse – of regulatory arrangements put in place after that date.

4.49 A final theme in the responses to this question was that of the need for alternative accessible and widely known routes to redress for those abused subsequently if a cut-off date of 2004 were to be applied,

4.50 In this context, it was suggested that it might be appropriate to review the scheme (e.g. after three years) to consider whether the definitions agreed for legislative purposes (including the proposed cut-off date) were still fit for purpose. Another was that there should be a careful review of existing legislation and policies / regulations in order to avoid a situation in which certain categories of survivors might find themselves unable to secure compensation through any route.


Contact

Email: redress@gov.scot