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institutional child sexual abuse redress schemes – the Australian model six months in

12 December 2018

2018 has seen much discussion of the possibility of setting up redress schemes in the UK to address historical child sexual abuse. Most of that abuse is said to have occurred in institutions.

In this country there is a well‑established set of systems for victims of childhood sexual abuse to recover compensation. This has developed over the last 25 years. Many claimants can seek a tariff‑based award from the CICA, others turn to the Civil Justice System, with all the associated legal costs, where damages awards are generally significantly more generous. The IICSA is clearly keen that UK Government considers a redress scheme, at least in principle (see here). What form any scheme might take, and how institutions and their insurers might contribute remains to be seen, but for stakeholders it is worth looking at what has happened outside the UK.

As a starting point, across the other side of the globe, the Australian National Redress Scheme (for people who have experienced institutional child sexual abuse) has been open since July 2018. It will run for 10 years. Applications can be made any time before 30 June 2027. The website provides a list of participating institutions, including the Commonwealth and all State territory governments, and many of the major churches and charities. The website says that “Institutions that have not yet committed to joining the Scheme are strongly encouraged to do so”. The deadline for joining the Scheme is up to 30 June 2020.

Acceptance of any offer under the Scheme binds an applicant to an agreement not to take any further civil action. This finality is a feature which may make the Scheme attractive to institutions.

Eligibility criteria are reasonably strict. Applicants have to be over 18, and their alleged abuse has to have happened in circumstances where “An institution was responsible for bringing you into contact with the person who abused you”. Applicants have to be an Australian citizen or permanent resident. Applications on behalf of the deceased, and those who have already received a court ordered payment are excluded. Out of court settlements and other redress payments will be deducted from the total amount payable under the Scheme, which is a tariff running from $10,000 AUD to $150,000 AUD.

Applicants in jail are considered carefully and are generally ineligible, although they will be able to apply to the National Redress Scheme once they are released from jail. The Scheme also offers counselling (either signposted to providers in some parts of Australia, or through the provision of $5,000 AUD to the applicant to spend on counselling of their own choice). The Scheme also offers claimants the possibility of having a direct personal response such as an apology directly from the institution in question.

A few months in, and criticisms of the Scheme are already significant. They include:

  • complaints that the maximum redress payment is too low, already reduced from the original $200,000 recommended by the Royal Commission

  • applicants who were assaulted in more than one institution cannot argue for anything about the $150,000 maximum, interpreted by some as 'rewarding' institutions who join the Scheme

  • criticisms of the hierarchical assessment framework of damages, which focuses on the nature of the abuse as opposed to the severity of its impact and the circumstances in which it happened

  • concerns also exist that the policy guidelines used by the Redress Scheme in its assessment framework are not publicly available, and in fact that it is an offence to disclose information in the guidelines.

There are an estimated 60,000 survivors. By the middle of October 2018 1,500 applications had been made. The Redress Scheme has decided to give priority to survivors who are elderly and those suffering serious life‑limiting illnesses (12‑14% of the first batch of applicants). A handful of payments have been made in the first 4 months. To those experiencing these sorts of cases that may seem like a very quick turnaround. To critics of the system this is widely publicised as unacceptable.

Claimants’ solicitors also have something to say about all this. Australian personal injury lawyers report they consider the institutions who have signed up believe the Scheme will cost them less than if claimants sue them for compensation in court. They also point out that not everyone who seeks redress will get a maximum award; the average payment is expected to be around $76,000 AUD (£43,000 at the time of writing). The general consensus appears to be that weaker cases that might not succeed in the Australian Civil Courts are likely to apply for redress. Where victims cannot identify their abuser, or when the abuse occurred, they are more likely to receive compensation through the Redress Scheme which takes 'reasonable likelihood' as its burden of proof.

Claimants with stronger cases, where the evidence is better focused, are more likely to pursue their case through Australian Civil Courts, where the burden of proof is on the balance of probabilities and the likely quantum awards are greater.

All this goes to demonstrate that no redress scheme is perfect. Every scheme will have thresholds, deadlines, and eligibility criteria. This scheme relies on the involvement of institutions, excluding many claimants who may have been harmed within their families. The very existence of those criteria will always mean that some perfectly honest claimants will simply not be entitled to a damages or redress award.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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