Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland? — Dr Maeve O’Rourke

21 October 2020 by Guest Contributor

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently undergoing parliamentary scrutiny.

How survivors experienced Ireland’s institutional abuse ‘redress’ schemes (the Residential Institutions Redress Board (RIRB) and the Magdalen Restorative Justice Ex-Gratia Scheme) over the past two decades can tell us a great deal about the elements of good practice in the Scottish Bill and the areas requiring amendment.

The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.

However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.

Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.

Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.

In a January 2020 admissibility judgment in the individual communication of Elizabeth Coppin v Ireland, the United Nations (UN) Committee Against Torture found the waivers signed by a participant in the two above-mentioned Irish redress schemes to be unenforceable. The Committee affirmed that Articles 12, 13 and 14 of the Convention Against Torture require the state to investigate each individual case where there is reasonable ground to believe that torture or ill-treatment occurred, and that Article 14 requires the state to allow civil proceedings concerning allegations of torture or ill-treatment. Finding the waivers to have no effect on Mrs Coppin’s absolute rights under the Convention, the Committee highlighted that it had

previously determined that collective reparation and administrative reparation programmes may not render ineffective the individual right to a remedy and to obtain redress (general comment No. 3, para 20), including an enforceable right to fair and adequate compensation, and that judicial remedies must always be available to victims, irrespective of what other remedies may be available (general comment No. 3, para. 30).

The Scottish Government’s assertion in its briefing papers that the waiver provides greater ‘choice’ to those who have experienced child abuse in care must be queried given survivors’ unequal bargaining power. Survivors of care-related abuse and/or their family members generally need the limited financial support that is available from a non-adversarial scheme. Notwithstanding the good intentions expressed regarding it, a waiver takes advantage of a survivor’s situation—which has arisen from the abuse and through no fault of their own.

Some may argue that the waiver is the fair price that survivors, collectively, must pay in return for a scheme that offers financial settlements for claims that might not succeed at trial.

However, against this contention are the following arguments: (1) the Bill’s proposed payments are minimal; (2) if a claim is not suitable for litigation, no interest is served by a waiver; (3) the reasons behind ‘historical’ abuse cases no longer being fit for trial frequently relate to the wrongdoers’ failures and treatment of survivors, meaning that survivors in general do not owe something in return for limited payments; (4) there is an absolute right under international human rights law for survivors of torture and ill-treatment to obtain individualised accountability and redress; and (5) if we assume that in any given instance a person would have succeeded in litigation but was forced by circumstance to accept the scheme payment, the waiver has rewarded the wrongdoer for conditions the wrongdoer created.

A waiver creates conditions of vulnerability. Ireland’s Magdalene Laundries survivors have not received all aspects of the promised redress scheme and the waiver is key to this situation. Following the Magdalene scheme’s establishment in 2013, the Department of Justice decided to administer financial payments before providing other supports such as enhanced health and social care. The women had to sign a waiver to receive their payment. They were then left with little recourse when other elements of the promised scheme failed to appear. The scheme was a non-statutory administrative arrangement, making judicial review an unviable option (aside from the financial barriers to litigation). Several dentists have ‘urge[d] the Council of the Irish Dental Association to publicly disassociate itself from this act by the Government and to speak out publicly on behalf of its members who do not accept the injustice we are expected to support.’ Women have spoken out about the Government’s failure to provide the promised healthcare. Nothing has changed.

Many survivors will not pursue litigation following an application to Redress Scotland. As acknowledged already in the briefing materials concerning the Bill, there are obstacles to litigating ‘historical’ abuse and personal preferences and circumstances will vary. Arguably, however, the waiver requirement disproportionately harms every applicant to the scheme and the general public, in addition to harming most obviously those who may have wished to litigate but felt obliged to take the scheme payment.

By forcing people to choose between a guaranteed financial payment and accountability, the waiver emits a message to survivors themselves, and to the general public about them, that they are interested in money above all else. This is simply untrue and degrading.

If barriers to litigation are removed, individual cases may establish precedents that are of benefit to many in terms of truth-telling and legal interpretations and standards regarding the nature of and responsibility to protect from child abuse. There is every reason to believe that the waiver will prevent cases that could have enhanced legal protections from child abuse from being taken.

The Irish experience shows that the absence of legal cases due to the waiver may lead to revisionism by some institutions or individuals who contributed to the scheme and benefitted from the waiver’s protection against suit. It is worth noting the response by the Rosminians (Institute of Charity) to the Irish Department of Education’s 2015 proposal to retain but ‘seal’ for at least 75 years all records gathered by the RIRB. The priests opposed any retention of the records, rejecting the veracity of survivors’ accounts of abuse generally and ignoring the fact that the RIRB made awards following an adversarial process:

Those who were involved in the Redress Scheme know well that it was purposely designed with a very low burden of proof to facilitate the State. The motivation was as much to do with politics as with justice. … Future generations will naively take as truth the submissions to the Redress Board and lead to the eternal besmirching of the names of good people. Injustice heaped upon injustice.

The Magdalene scheme waiver, meanwhile, has led to Irish Government officials making repeated statements to UN human rights treaty bodies to the effect that the State knows of ‘no factual evidence to support allegations of systematic torture or ill treatment of a criminal nature’ and that: ‘No Government Department was involved in the running of a Magdalen Laundry. These were private institutions under the sole ownership and control of the religious congregations concerned and had no special statutory recognition or status’ (see here, here, here, here, here, here and here).

These contentions are disproved not only by extensive survivor testimony but also by the contents of the Government’s Inter-departmental Committee to establish the facts of State involvement with the Magdalene Laundries, a substantial report of the Irish Human Rights Commission, and the report of the former President of Ireland’s Law Reform Commission, Mr Justice John Quirke, on his proposals for the Magdalene scheme (these documents are summarised and cited here). The absence of litigation on the matter, however, continues to influence the State’s official position and as a result the national historical record and other structures.

Scotland has the opportunity to be world-leading in its response to so-called ‘historical’ child abuse in care. One would hope that lessons from Ireland will be learned—for the sake of survivors but also in the interests of children today and tomorrow, whose protection survivors invariably speak out for.    

Dr Maeve O’Rourke is a Lecturer in Human Rights at the Irish Centre for Human Rights, NUI Galway, and a barrister at 33 Bedford Row.