The final report of the Independent Inquiry into Child Sexual Abuse (‘IICSA’) was published on 20th October 2022, a culmination of 7 years of investigation. It was set up in 2014 following a series of high profile sexual abuse cases. It sets out the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes 20 recommendations for reform which will have a significant impact on organisations and their insurers.
It is estimated that 1 in 6 girls and 1 in 20 boys experience child sexual abuse before the age of 16. In March 2020, the Office for National Statistics estimated that 3.1 million adults in England and Wales had experienced sexual abuse as a child. As the Inquiry progressed the extent of the global crisis in child sexual abuse and exploitation became clearer. The Inquiry concluded that the true scale of child sexual abuse is likely to have been much higher than the numbers recorded. Interestingly, information collected by children’s services show high numbers of assessments where child sexual abuse and exploitation is identified as a risk factor, but the number of children placed on child protection plans is comparatively low. The report charts the settings in which the abuse occurred, with schools and children’s homes producing the greater numbers of abused children.
The Inquiry made 20 recommendations:
- A single set of core data to be collated relating to child sexual abuse and child sexual exploitation;
- Child Protection Authorities for England and Wales;
- A Cabinet level Minister for Children;
- A public awareness campaign;
- Prohibiting the use of pain compliance techniques - this relates to the excessive use of physical restraint techniques and deliberately using the infliction of pain to enforce compliance;
- Amendment to the Children Act 1989 to give parity of legal protection to children in care;
- Registration of care staff in Children’s Homes (secure and non-secure) with a registered body which will oversee settings and maintain standards, training and continued professional development, with the power to enforce those through fitness to practice procedures;
- Registration of staff in care roles in young offender institutions and secure training centres;
- Greater use of the Disclosure and Barring Service barred list;
- Improvements to compliance with statutory duties to refer concerns to the Disclosure and Barring Service;
- Extending the disclosure regime to those working with children overseas;
- Pre-screening for illegal images of children by internet providers to prevent child abuse images from being uploaded to platforms and social media profiles. This prevents the images from being viewed or shared;
- Mandatory reporting of child sexual abuse in certain circumstances;
- Compliance with the victim’s code;
- The removal of the three-year limitation period for personal injury claims brought by victims of child sexual abuse;
- A national guarantee of specialist therapeutic support for victims;
- A code of practice on access to records about child sexual abuse;
- Further changes to the Criminal Injuries Compensation Scheme;
- A tiered redress scheme;
- Age verification in relation to online services and social media platforms.
We focus below on those that are most relevant to local authorities, other public sector organisations, those who contract with them and their insurers.
Creation of Child Protection Authorities
At the heart of the recommendations is legislative reform to create Child Protection Authorities (“CPA’s”) for each county to ensure child protection. Their role is intended to include inspections of institutions as it considers necessary. It is recognised that responsibility for monitoring and implementing institutional child protection lies with several statutory agencies and sector specific inspectorates and government departments. The report states that whilst there is much that these organisations can do themselves to improve child protection, there are measures that the government should take to assist. It is envisaged that CPA’s should have a wide-ranging remit to enhance, extend and improve child protection in institutions and other contexts including promoting multi agency working, provision of high quality advice and keeping parliament informed about the state of child protection. They are to be independent and constituted as non-departmental public bodies dedicated to child protection functions generally. We question how in the current economic climate funding will be made available for these bodies to be created.
The Report recommends making it a legal requirement for those who work in a regulated activity or work in a position of trust to report alleged or suspected child sexual abuse to the police or social services. It recommends that it should be a criminal offence if the report is not made.
The government consulted on mandatory reporting in 2016 and in 2018 decided against introducing either a mandatory reporting duty or a duty to take appropriate action. The consultation cited risks in recruitment and retention of staff and a negative effect on the serious case review process.
The Inquiry Report recommends that mandated reporters will be any person working in a regulated activity in relation to children, any person working in a position of trust as defined by the Sexual Offences Act 2003 and police officers. This proposal goes hand in the hand with the proposal of public awareness campaigns to inform the public about what action they should take if they know or suspect a child is being sexually abused.
It is proposed that a report must be made where a disclosure of abuse is made by a child or perpetrator; or where a person witnesses a child being sexually abused; or where they observe “recognised indicators of child sexual abuse”. Where a child is between 13-16 years old, a report need not be made where the mandated reporter reasonably believes that the relationship between the parties is consensual and not intimidatory, exploitative or coercive, and the child has not been harmed. These exceptions do not apply where the perpetrator is in position of trust. Where the child is under 13 a report must always be made.
An analogy can perhaps be drawn with the statutory duty of candour in healthcare settings which requires regulated healthcare practitioners to admit and apologise when things have gone wrong. However, we are concerned that the proposed requirement to report is too broad and undoubtedly will be subject to confusion. There may be unfounded or even malicious reports made and what then of the accused’s fundamental rights to privacy and HRA article 8 rights? In addition we are concerned that the police and social services would not have the resources to properly respond to the increase in reports that will undoubtedly unfold.
Removal of the Limitation Period
The Inquiry concluded that the statutory three year limitation period in personal injury claims should be removed for victims of child sexual abuse. Currently, the Limitation Act 1980 seeks to strike a balance between the rights of claimants to bring claims and the interests of defendants where it may be unfair or impossible to defend cases owing to the passing of time. All victims of child sexual abuse have until at least the age of 21 to commence their claim. If they bring the claim out of time, they must ask the Court for discretion to allow the claim to proceed. The Inquiry received representations from solicitors that limitation prevents them from accepting instructions for victims of child abuse and funding is often unavailable. Limitation was also cited as a significant factor in accepting discounted settlements.
Some insurers and defendant solicitors accepted during the investigation that limitation was a barrier to justice and were broadly open to some form of reform and were in some cases supportive of it, provided that any change preserved the defendant’s right to a fair trial. Some witnesses suggested that legislative reform was required by way of a code of practice or a pre-action protocol rather than a substantive law change. However, the Report concludes that legislative reform is also needed. Research indicates that the average time for victims to disclose sexual abuse is 26 years. Any legislative change will maintain the protection of the right to a fair trial, but the burden will be on defendants to show that a fair trial is not possible.
As time has passed, limitation has become less of a barrier to claims as the Courts have accepted the challenges that victims face in disclosing non recent abuse, and allow claims to proceed. Insurers have also recognised that, leading to many more claims being brought and settled over recent years. IICSA has encouraged further debate on this point, and the final decision on the extent to which a right to a fair trial is codified, will determine how this trend continues.
The Inquiry recommends that the UK Government establishes a single redress scheme eligible to all victims of child sexual abuse and exploitation that occurred in England and Wales. It recognises that sexual activity between children below the legal age of consent may be consensual or non-abusive. It is not considered that such consensual though unlawful behaviour should fall within the scope of the scheme provided the sexual activity is not abusive, coercive or exploitative. The Inquiry invites the Government to consider extending the scheme to other forms of childhood abuse which are frequently interlinked.
It is not proposed that the scheme is limited to abuse that took place before a specified date. The scheme should not allow an applicant to receive compensation twice (it is left to the government to decide how this would work in practice) and suggests that those who have previously received payment under any other scheme should be excluded. Those who have brought but lost civil claims should also be excluded, save those whose claims have failed on grounds of limitation.
It is proposed that payments would be made through a two tier system based on a tier one fixed flat-rate recognition payment, with the option for a second-tier payment. The first tier fixed payment will be set at a “modest level” and available to victims and survivors who meet the eligibility requirements of the scheme (which, as above is wide) and the payment will reflect that they do not want to recount in detail the sexual abuse experienced. The second-tier payment will be available to eligible applicants who wish to provide more detail of the evidence with assistance if required. It is proposed that payments made should be sufficient to recognise the experience of victims and survivors but may not be as high as the awards available in civil claims. Legal assistance may be sought, where necessary although the funding of those legal costs is not addressed.
It is proposed that the scheme runs for 5 years and is funded by central and local government with voluntary contributions sought from perpetrators, institutions and their insurers. Consideration was given as to whether compulsory contributions could be sought from insurers by way of a global “levy” on those who provide cover for particular institutions or on a case by case recoupment process. There is a socio-economic point that any requirement on them to contribute will likely result in an increase in premiums. The State contributing also has socio-economic implications as there are many calls on public funding and borrowing requirements at present.
The Inquiry defers to the Government to consider the detailed rules and funding arrangements of the scheme and states that they should consult victims and survivors on its detail and implementation.
The Inquiry expects the UK and Welsh Governments and the specified institutions to act upon the recommendations promptly and to publish details of the steps they will take within 6 months. The government has said it will provide “a comprehensive response” to the report’s recommendations within 6 months of its publication. It is anticipated that implementation and compliance with the recommendations will be monitored and reported upon by the Child Protection Authorities and that pending the establishment of these agencies the Minister for Children and its equivalent in Wales will undertake the same role. Reporting should take place at least annually.
As may be anticipated, with a report that has been so long in the making, and with so many interested parties, not all are happy. Insurers will be interested in whether a levy is to be applied to them to help fund a redress scheme, and the extent to which civil claims will increase, so that they can ensure that they make suitable financial provision.
We will provide further updates as matters progress.
For more information or advice, please contact one of our experts in our Specialist Liability Team.