The nature of childhood abuse is that it is very difficult for the victim to come forward and speak about it. Publicity surrounding high-profile abusers such as Jimmy Savile, Stuart Hall and Rolf Harris have encouraged victims that their claims will be taken seriously. However, the majority of victims find that when they do come forward their civil claims for compensation are out of time.
As part of their wider commitment to adult survivors of childhood abuse to fulfil the recommendations of the Scottish Human Rights Commission inter-action plan, the Scottish government recently published a draft Bill which would remove the time limits for victims of childhood abuse. The present position is that, as a general rule, a victim of childhood abuse will have until three years after the last abusive act or their 19th birthday (whichever is later) to either settle a claim or to raise court proceedings against their attacker. There are various exceptions to that general rule, particularly where the victim has lacked capacity for periods of time.
There is presently provision within the existing legislation that allows the court to exercise its discretion to allow a claim to be heard even after the relevant time limits have passed. As victims have had to rely on the discretion of the court in allowing claims which are technically late, some cases have not been allowed to proceed and this has drawn criticism from some quarters that the approach taken has not been consistent, leading to calls from victims’ groups to abolish the time limit completely.
The intention of the new bill is to remove the time limit barrier, allowing these claims to be heard. The draft bill is retroactive but only applies to childhood abuse that took place on or after 26 September 1964. Childhood abuse is defined widely in that a child is under 18 and “abuse” includes sexual abuse, physical abuse, emotional abuse and neglect. Importantly, if a person has previously raised court proceedings but that action was not successful because it was out of time, it is still possible to re-raise that court action. This applies even where ordinarily that would not be allowed, although the right to a fair trial must still be protected.
There is no set date yet for the Bill to be debated in the Scottish Parliament and put to a vote. The proximity of the Scottish Parliament elections means it will not be before May. However, as the Bill is likely to receive cross-party support it should become law in due course, regardless of the outcome of the elections.
Stephanie Watson is an Associate in our personal injury team and can be contacted on 0800 731 8434.
