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.

177 page PDF

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177 page PDF

1.5 MB

Contents
Financial redress for historical child abuse in care: consultation analysis
6. Stage One evidence requirements (Q12–Q15)

177 page PDF

1.5 MB

6. Stage One evidence requirements (Q12–Q15)

6.1 The earlier survivor consultation indicated a clear preference for an approach to financial redress based on a combination payment. This would involve a flat-rate standard payment, and an individual experience payment which would take account of a range of factors such as the nature, severity, duration and long-term consequences of the abuse. The consultation paper outlined plans to adopt a combination payment approach with two possible stages. For a Stage One payment, there would be no attempt to assess an individual’s experience of abuse or its impact; however, there would need to be evidence that an individual had been in care in Scotland during the appropriate period and had suffered abuse. An application for an ‘individual experience’ Stage Two payment would require more detailed evidence about the abuse suffered and the impact of that abuse.

6.2 Questions 12 to 15 sought views on a number of issues relating to the evidential requirements and process for Stage One payments. Respondents’ views relating to the evidence requirements for a Stage Two payment are discussed in Chapter 7.

Question 12: What options might be available for someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland?

Question 13: Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available? [Yes / No] Please explain your answer.

Question 14: For Stage One, what evidence do you think should be required about the abuse suffered?

  • A signed declaration by the applicant that they suffered abuse, but no other supporting evidence [Yes / No]
  • A short written description of the abuse and its impact [Yes / No]
  • Any existing written statement from another source which details the abuse in care [Yes / No]

Question 15: Do you have any additional comments on evidence requirements for a Stage One payment?

Key points

  • Respondents put forward a wide range of options for how individuals might show they had spent time in care in Scotland. This included health, education and social work records, existing evidence related to previous legal and administrative proceedings, personal and third-party (family, friends, staff etc) statements and oral evidence. There was a mix of views on the extent to which documentation or verification should be required and the evidential threshold that should be applied, and some concern that requirements did not retraumatise victims / survivors.
  • There was near unanimous support (98% overall) for a power to require bodies or organisations to make available documentation that would support a redress application. Respondents thought this would help address the difficulties and stress faced by individuals trying to access documents, and help ensure that claims could proceed, while also enhancing the transparency and efficiency of the scheme. However, some thought the right to access such information already existed under data protection legislation, and others highlighted the resource implications of such a power (seen as a particular issue for local authorities) and the need to protect third party confidentiality when accessing documentary evidence.
  • In terms of the evidence that should be required for a Stage One application, respondents generally supported the use of (i) a signed declaration by the applicant that they had suffered abuse, (ii) a short written description of the abuse and its impact, and (iii) any existing written statement from another source which provides details of the abuse. However, there was no clear consensus about which of these three forms of evidence should be preferred.
  • Respondents also commented on the Stage One process more generally, calling for this to be fair, transparent, straightforward and accessible for all claimants, with appropriate support and assistance provided, and appropriate evidential thresholds in place.

Supporting documentation to confirm in care status (Q12)

6.3 Question 12 was an open question (with no preceding tick-box question) seeking views on the options available to someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland.

6.4 Altogether, 207 respondents (168 individuals and 39 organisations) commented at Question 12. There were three main themes in these comments – often raised in combination – which related to (i) discussion of problems accessing documents, (ii) the kind of help that might be given to victims / survivors in accessing documents, and (iii) alternative forms of evidence that might be acceptable. Each of these is discussed below.

Difficulties in accessing supporting documents showing time spent in care

6.5 Respondents often highlighted the difficulties of accessing evidence of time spent in care in Scotland.

6.6 General comments on this theme related to records being destroyed or lost; ‘poor record-keeping practices’ in the past; relevant organisations having ceased to exist, or now being known by a different name; records being held in parents’ or siblings’ names; organisations being unhelpful, uncooperative and deliberately withholding information; and the prohibitive costs and considerable effort involved in establishing who holds the relevant documentation. Respondents also referred to the particular difficulties faced by older victims / survivors. Some argued that victims / survivors should not be penalised for organisational failings and that these bodies should be held to account if individuals could not access the necessary evidence.

6.7 Some individual respondents discussed their own experience of trying to access documentation – in most cases, commenting on the difficulties they had faced in doing so. Occasionally, respondents provided more positive comments – for example, explaining how they had managed to access documentation and who (a social worker, lawyer or Wellbeing Scotland) had helped them to do so.

Options for evidencing in-care experience

6.8 Respondents made a wide range of suggestions for alternative types of evidence that applicants might use to show they had been in care in Scotland. The main options mentioned (in roughly descending order of frequency) were:

  • Medical records (including GP, hospital, and psychologist documentation)
  • School records (including letters, attendance records, and reports)
  • Testimonies or accounts from others in care with the applicant (including siblings)
  • Testimonies or accounts from family, friends and others with close involvement with the applicant
  • Legal documentation (including police and court records, or other evidence of civil or criminal complaints being made, or records of Scottish Child Abuse Inquiry (SCAI) proceedings)
  • Photographs (for example, of the applicant, with other children or staff in situ or during trips away or events)
  • Social work records
  • Survivor knowledge and recall of their time in care (including descriptions of the accommodation, uniforms, routines, and excursions and details of staff names (care, teaching, religious and others) and other children in care at the same time)
  • Evidence from institutions, including records and accounts from former staff members
  • Oral evidence (either from the applicant or a third party).

6.9 Although respondents often referred to the need for ‘statements’, it was not always clear exactly what was meant by this term. For example, some referred to statements by the victim / survivor and some to those by third parties, and others did not clarify. Similarly, some suggested that ‘personal statements’, ‘written statements’ and ‘testimonies’ should be taken ‘under oath’, ‘sworn’ or ‘signed’, while others spoke more generally about statements and did not express a view on whether or how these might be taken or verified.

6.10 Occasionally, respondents expressed the view that victims / survivors should be trusted and their accounts of time spent in care in Scotland should be believed. Consequently, some argued that no documentation should be necessary, or that requirements should be minimal. Some organisations also suggested that the approach to documentary evidence for a Stage One payment should follow the same, or a similar, approach to that adopted in relation to Advance Payments or that any lessons learnt from the implementation of the Advance Payment Scheme should be taken on board.

6.11 While there was little explicit discussion of what the evidential threshold might be, there were occasional references to the ‘balance of probabilities’, ‘likelihood’ and ‘benefit of the doubt’, on the one hand, and to the need for a ‘high degree of certainty’ on the other.

6.12 Much less often, respondents suggested that evidence was required to prevent fraudulent claims to the redress scheme. Most of these comments were of a general nature, but there were also specific suggestions that such claims could be prevented by requiring a signed statement or imposing a harsh penalty system for making fraudulent claims.

6.13 While respondents commonly believed that some evidence of time in care was needed, there were some concerns that the suggested approach risked further traumatisation of victims / survivors by reinforcing a sense of not being listened to or believed. In this context, some also suggested that the onus of producing evidence should be on institutions and local authorities rather than victims / survivors.

Supporting victims / survivors to access evidence of time in care

6.14 Some respondents made suggestions about who might provide support to victims / survivors to access documentary evidence of time spent in care in Scotland. The Scottish Government and the redress scheme itself were suggested most often, followed by local authorities. Other less common suggestions included lawyers, advocacy workers, the organisations being investigated, and whichever organisation lost the information. Diverse comments were made about how this support process might operate – for example, relating to the need for support to be offered as early as possible, for the process to be expedient, for organisations to be compelled to provide documentation, and the redress scheme being used as a holding centre for documentation.

6.15 Organisations were also more likely than individuals to comment on how the process might work – emphasising, for example, the need for a broad definition of supporting documentation and clarification about information requirements and timescales; consistency with the guiding principles of the scheme; a quick process; and consideration of how victims / survivors with additional needs will be supported.

Power to require organisations to release documentation (Q13)

6.16 The consultation paper indicated that the Scottish Government is considering whether there should be a legislative power requiring bodies or organisations, subject to certain criteria, to release any documents which relate to ‘an applicant’s identity, placement details, abuse or injury suffered as a consequent of that abuse’. Question 13 asked for views on this.

6.17 Table 6.1 shows that there was near unanimous support for this proposal, with just 2 organisations (both in the care provider group) and 3 individuals indicating disagreement.

Table 6.1: Q13 Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available?
Respondent type Yes No Total
n % n % n %
Local authority / public sector partnerships 11 100% 0% 11 100%
Other public sector 5 100% 0% 5 100%
Current or previous care provider 8 80% 2 20% 10 100%
Third sector, including survivor groups 8 100% 0% 8 100%
Legal sector 6 100% 0% 6 100%
Other 3 100% 0% 3 100%
Total organisations 41 95% 2 5% 43 100%
Individual respondents 217 99% 3 1% 220 100%
Total (organisations and individuals) 258 98% 5 2% 263 100%

One individual ticked ‘yes’ and ‘no’ in response to this question. This response is not included in the table above.

6.18 Altogether, 180 respondents (139 individuals and 41 organisations) provided further comments. Not surprisingly, these largely reflected the overwhelming support for the proposed approach. At the same time, some respondents pointed out that individuals already have a right to access their records under data protection legislation and so queried the need for an additional power. An alternative view was that social work records alone should be a sufficient source of evidence.

6.19 Although most comments suggested general support for a power to require bodies or organisations to make relevant documentation available, some addressed the circumstances in which this power might be appropriate – for example, only after reasonable time has passed, if evidence of abuse already exists, if individuals have given their permission, or if an organisation has not complied with an individual’s request.

6.20 The consultation paper itself suggested that this power would be subject to certain criteria, but very few respondents made direct reference to this concept. Among those who did, there were general comments about the need to have criteria, the need to establish what these might be, and for them to be ‘appropriate’. Occasionally, respondents explicitly stated that no criteria should be applied.

6.21 A further group of comments related to the benefits, aims and purpose of the redress scheme having such powers:

  • Most commonly, respondents cited evidential issues, and said the power would help to provide proof of time in care and eligibility, and additional evidence or corroboration.
  • Requiring bodies to provide documentation was seen by some as enhancing transparency and preventing organisations from evading their responsibilities. Other comments related to the principle of providing documentation, with references to organisations’ moral duty and the rights of victim / survivors.
  • The power was also seen as potentially removing the burden of proof from individuals, making the process less stressful and more victim / survivor-centred.
  • Others believed that this power would reduce the risk of victim / survivors being prevented from making successful claims.

6.22 Difficulties in accessing documentation (as discussed at paragraph 6.6) were widely referred to by respondents to justify the proposed power to require organisations to make documentation available. It was suggested that such a power would help overcome many of these difficulties. In addition, some organisations suggested that the power to require organisations to make documents available would help improve the efficiency and effectiveness of the scheme. The experience of the Australian redress system was referred to in this context.

6.23 Finally, the point was made that the proposed power is consistent with the existing legal framework of ECHR law (which specifies that the state must support an individual to access information about their childhood) and the ‘Van Boven principles’ on the entitlement of victims to information on the causes leading to victimisation and violations of international human rights law and international humanitarian law.[5]

6.24 Some respondents discussed how organisations might be required to make documentation available. While some made general references to organisations simply being ‘compelled’ or ‘forced’ to do so – or to cooperation being ‘mandatory’ – others explicitly stated that they thought organisations should be required ‘by law’, ‘legislation’, ‘the courts’ or ‘a statutory framework’ to provide the documentation requested. Some also suggested penalties, such as prosecution or a fine, for non-compliance. Less often, respondents proposed that organisations should be compelled to make searches for documentation that they claim are missing and that the redress scheme should have the power to scrutinise any such claims. An alternative view was that legislation is needed to enable organisations to release documentation that might otherwise be covered by data protection laws.

6.25 Some respondents referred to the type of organisation and / or type of documentation that the power should cover. The most common view here was that all types of organisations and documentation should be included, though some respondents specified particular organisations (including local authorities, institutions and the police) and / or types of documentation (such as that evidencing failure of duty of care, log books, minutes and non-active social work files).

6.26 Overall, organisations and individuals expressed similar views in relation to this issue. There were, however, a small number of other issues raised primarily by organisations. Some organisations (and, occasionally, individuals) raised the issue of safeguarding the confidentiality of others named in documentation relating to claimants. Suggested strategies to address this included redaction and / or sending the documentation directly to the redress body, or to a third-party organisation for holding, rather than to the claimant.

6.27 Organisations also highlighted (i) the need to provide realistic timescales for compliance, and (ii) the fact that this proposal would have resource, staffing and management implications for organisations and that these would increase if documents have to be redacted before being released. Regarding the latter point, some respondents emphasised the need to ensure that documentary searches do not result in resources being diverted from the provision of statutory services (e.g. child protection and welfare).

Evidence of abuse required for a Stage One payment (Q14)

6.28 Question 14 asked respondents for their views about the type of evidence of abuse that individuals should be required to submit in support of an application for a Stage One payment. This was a closed question and respondents were asked to indicate agreement or disagreement with three options.

6.29 Table 6.2 shows the number of respondents who answered ‘yes’ to one or more of the three options, as a proportion of the those responding to any of the three options. It should be noted that, although the first of the options is logically incompatible with the subsequent ones, respondents were asked to respond to each option separately, and some ticked ‘yes’ to all three options. All these responses are included in the table.

6.30 Table 6.2 shows that, overall, between around two-thirds (64%) and three-quarters (76%) of respondents answered ‘yes’ to each of the options offered, indicating general support for all three forms of evidence, but no clear consensus on a preferred form of evidence. The broad pattern of response was similar for individual and organisational respondents; however, the percentage of respondents agreeing that each type of evidence should be required was slightly higher among individuals than organisations.

Table 6.2: Q14 ­– For Stage One, what evidence do you think should be required about the abuse suffered?
Organisations Individuals Total
Respondent type n % n % n %
(1) A signed declaration by the applicant that they suffered abuse, but no other supporting evidence 23 62% 152 70% 175 69%
(2) A short written description of the abuse and its impact 25 68% 168 77% 193 76%
(3) Any existing written statement from another source which details the abuse in care 20 54% 143 66% 163 64%
Base (number ticking any response at Q14) 37 218 255

At each of these options a small number of respondents ticked both ‘yes’ and ‘no’. These have been excluded from both the numbers and percentages above.

Other views on Stage One evidential requirements (Q15)

6.31 Question 15 was an open question asking respondents if they had any additional comments on the evidence requirements for a Stage One payment. Altogether, 195 respondents (150 individuals and 45 organisations) addressed this question and the views expressed largely echoed those already discussed in relation to Questions 12 and 13 above. In particular, individuals often highlighted personal experiences of being in care and the abuse suffered, or discussed the difficulties of accessing and giving evidence and making claims related to, for example, SCAI proceedings or civil court action.

6.32 The remaining responses related to several broad themes, as discussed below.

Types of supporting evidence

6.33 Respondents at Question 15 frequently commented on the type of evidence that might be used to support an application for a Stage One payment. Some referred specifically to the three forms of evidence asked about in Question 14, while others referred to possible alternative sources of evidence. In general, these other forms of evidence were similar to those highlighted at Question 12 (such as medical records, police statements, court and social work records). The most common type of additional evidence referred to was pre-existing evidence, such as that presented to the SCAI.

6.34 Comments relating to the three options highlighted in Question 14 – a signed declaration, a short written description and an existing written statement from another source – are summarised below.

Option 1 – Signed declaration by the applicant

6.35 Although the consultation paper describes Option 1 as a signed declaration not supported by any other evidence, respondents who expressed support for this option generally thought a signed declaration from the applicant should be used in conjunction with another form of evidence. For example, respondents said that a signed declaration should be considered acceptable or relevant only if the SCAI had already identified the pertinent organisation as failing to protect young people from abuse, or if the claimant had other existing evidence of abuse and its impact and proof of being in care. Only occasionally did respondents suggest that a signed declaration by the applicant should be considered sufficient evidence on its own.

Option 2 – A short written description of the abuse and its impact

6.36 Around three-quarters of respondents said that a short written description of the abuse and its impact should be required as a form of evidence for Stage One. However, in their comments, respondents often expressed concerns that requiring respondents to prepare this type of evidence might cause further trauma to victims / survivors. As a result, some respondents suggested that this type of evidence should be optional rather than mandatory, or qualified their support for Option 2 saying, for example, that this type of evidence should only be required from applicants to the scheme if no previous report of abuse had been made. Some respondents also commented on how any such evidential requirement might operate in practice, suggesting that (i) a written description prepared by a third party on behalf of the applicant should be acceptable, and (ii) this type of evidence should only be acceptable if it was signed and dated.

6.37 However, some thought the need for such evidence depended on the design of the scheme. For example, it was suggested that a short written description of the abuse and its impact should be required if the level of a Stage One payment were to be higher than the level of an Advance Payment. However, it was also argued that, as a Stage One payment would not involve an assessment of the nature and impact of the abuse (according to the proposals for the scheme), a written description of the abuse and its impact would not be relevant at Stage One.

Option 3 – Any existing written statement from another source

6.38 Respondents only occasionally made comments on the use of written statements from other sources. The point made most often was that these could be helpful in corroborating other forms of evidence and in preventing fraudulent claims.

Need for evidence for proof, verification and avoidance of fraudulent claims

6.39 Some respondents referred to the need for some evidence to prove that an individual spent time in care or that abuse occurred and for corroboration of that evidence. This was often because of concerns about the potential for fraudulent claims and abuse of the system. These views were expressed by both individuals and organisations (mostly current or previous care providers).

6.40 Some also suggested that supporting evidence would be needed to ensure that the redress scheme appears credible and robust and to give victims / survivors confidence in it. It was suggested that not requiring evidence might expose the scheme to criticism, as well as false claims, with negative consequences for genuine victims / survivors.

6.41 However, respondents also reiterated earlier comments (made at Question 12) about the difficulties accessing documentary evidence of time spent in care, and also noted additional difficulties in evidencing abuse related to non-disclosure by victims / survivors, and lack of witnesses (either because nobody was present when the abuse occurred or because potential witnesses have since died).

The structure and management of the Stage One process

6.42 Respondents frequently made comments about the proposed approach to Stage One claims. In particular, it was common for individual respondents to refer to the values they hoped the redress system would embody, using words such as ‘fair’, ‘equitable’, ‘transparent’, ‘simple’ and ‘straightforward’. Organisational respondents also commented on the need for the process to be simple and straightforward. Less often, both individuals and organisations suggested that the design of the Stage One process needs to ensure victims / survivors are not in any way further traumatised and that they can have confidence in a robust and credible system.

6.43 Respondents also offered suggestions about other aspects of the process (including payment structures) or the process more generally. However, there was little commonality and no clear consensus on the points raised.

Support for victims / survivors to access and present evidence

6.44 Some respondents (particularly organisations) highlighted the need to support victims / survivors to access or present their evidence. Most commonly, this was discussed in relation to the needs of applicants with literacy and / or learning difficulties who might find it hard to provide written or oral statements.

6.45 In other cases, respondents outlined what support might involve, such as helping to source information from other agencies, minimising trauma or encouraging the disclosure of information about abuse and its impact. It was suggested that the Scottish Government should fund any support required and the victim / survivor should be able to choose which organisation provides this support.

Evidential thresholds

6.46 Comments about evidential thresholds and standards of proof were mainly, but not exclusively, made by organisations. Most often, respondents suggested that the standard of proof required at Stage One should be ‘low’ or of ‘a minimum standard’, or they argued that setting ‘arduous’ requirements for evidence risked deterring people from making claims to the redress scheme. Some referred to taking a ‘balance of probabilities’ approach, similar to that used in the civil courts, while others argued even this might be too high a threshold because of the difficulties in accessing evidence and the risks of further trauma.

6.47 Reference was made to the Advance Payment Scheme and, while some respondents thought that Stage One payments should have the same evidence requirements as this, others suggested that there may need to be a higher threshold (if, for example, payments were to be higher than those made under the Advance Payment Scheme). However, there was also a view that, whilst there may be a case to have a higher evidential threshold for Stage One payments than Advance Payments, there was a risk that the scheme may be open to criticism if different rules apply to different age groups.

6.48 Finally, there was a suggestion that the Scottish Government may wish to work with victims / survivors to establish their views on a realistic evidential burden.


Contact

Email: redress@gov.scot