Law must become ally of childhood abuse victims

12:36am Friday 7th December 2007

CAMERON FYFE

I have had two lives," a client once said to me. "One before the abuse and the other since." I am acting for nearly 1000 victims who, when children, suffered abuse in various homes, schools and orphanages, and each would echo those words. They would also empathise with another client who told me that she had wasted most of her adult life trying to lock away the memories of the abuse she had suffered. Her hope that the passage of time might provide a protective shield proved to be false and it was only in middle age that she could begin to come to terms with her tortured past when she read a series of newspaper articles exposing wide spread abuse in the orphanage in question.

These articles created a domino effect. Victims of abuse in other homes and schools found strength in numbers to come forward and over the past decade there have been many convictions against individual abusers and claims for compensation against the institutions themselves.

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The clients who seek my advice all have the same question: "What can we do to achieve justice and a sense of closure?" I tell them that under Scots Law I can only seek compensation on their behalf and this answer is invariably met with disappointment and frustration. What the vast majority desire is not money, but an apology from those responsible and an acceptance that the abuse took place.

Then it gets worse. I have to explain that their only recourse under civil law - a claim for compensation - may well be unsuccessful. This is because these claims are technically time barred in that, generally, a claim has to be made within three years of the victim's 16th birthday. "Absurd" and "ridiculous" have been some of their more polite responses.

Every eminent psychologist in the land will tell you that victims are paralysed by humiliation, anger and irrational guilt and attempt self-preservation by building a wall between themselves and their experiences. How, then, can such an individual be expected to cast these emotions aside, trip down to his local solicitor and embark on a long and complex court action for damages, all before his 19th birthday? This rule may well be appropriate to standard claims (tripping on an uneven pavement on Argyle Street) but entirely inappropriate in claims for abuse.

This week the Scottish Law Commission issued a long-awaited report on the time bar. My clients feel the commission had an opportunity to amend the law which relates to childhood abuse, but has declined to do so. The clients I have spoken to about this are bitterly disappointed. They feel the Scottish legal system has never been on their side and this is yet another example.

The courts have a restricted discretion to allow these time-barred cases to proceed but so far have refused to exercise it. Several appeals are currently before the House of Lords but perhaps the only remedy will be legislation by the Scottish Parliament, despite the lack of support from the Scottish Law Commission. Many MSPs agree that the law seems unfair, but whether they will have the chance to change it is another matter.

In the interests of balance, let us consider the argument of the opponents. They point out that it is difficult properly to investigate a claim relating to events some 20 or 30 years ago. Witnesses die. Documents get lost or destroyed. Memories fade. There are two answers to this. First, if that were the case, why should this point not apply to the criminal law which does not have these time-bar rules? Could you imagine the furore if prosecutions of Nazi atrocities at Auschwitz had been thrown out of court on similar grounds? Secondly, I have many actions for damages against churches, city councils and children's homes in which the abusers have been prosecuted, convicted and sentenced (in one case to life imprisonment). In these cases the institutions who employed them still insist on implementing the time-bar rule. How can they argue that these claims are difficult to investigate when the criminal justice system has already brought the evidence to the surface? What else is there to investigate? How can they deny the abuse when the abuser has been found guilty beyond all reasonable doubt?

This has been another disappointing week for many victims of childhood abuse. So far Scots Law has not been their ally. As one client said to me: "I have been abused twice. First by the rapist and now by the system."

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