Rebecca Sheriff, Trainee Solicitor
Email the child abuse team
Led by Stephanie Prior, Anthony Gold Solicitors has a dedicated child abuse team that specialise in bringing claims involving the failure to remove children from their parent’s care, negligent placements in children’s homes, negligent placements with inappropriate foster carers and claims against individuals for sexual abuse.
The majority of child abuse claims are based on the tort of negligence but in cases where this is not a viable cause of action, we also investigate claims for trespass to the person. Trespass to the person covers acts that in criminal proceedings would be classed as assault, for example, threats of violence, actual and grievous bodily harm, indecent touching, rape and buggery. These are deliberate acts and, therefore, do not constitute negligence but instead fall under the action of trespass to the person.
It can be difficult in child abuse cases to establish who the correct defendant is and in many cases there will be more than one. As a general rule, in cases involving a negligent placement in a children’s home or with inappropriate foster carers, the defendant is likely to be the local authority responsible for that placement. In cases where a child has been abused by an employee of a local authority then the defendant will be vicariously liable by the acts of its employees. This is the principle whereby the abuser’s actions were so closely connected with their employment that it would be fair and just to hold the employer liable for those acts (Lister v Hesley Hall [2001] UKHL 22).
Time Limit For Bringing a Claim
Under s11 Limitation Act 1980, a claimant has 3 years from the date of the incident or 3 years from the date of knowledge to bring a claim. In the case of children the 3 year period will not start until they turn 18 and so the deadline for bringing a claim will be their 21st birthday. In child abuse cases, however, it is extremely common for claimants to bring claims many years after the limitation period has expired. There are numerous reasons for the delay including embarrassment, a feeling of not being believed, wishing to put the past behind them or the fear that something would happen to them if they did come forward.
The court has taken account of these reasons in these cases and the limitation period can be extended subject to the court's discretion. S33 of the Limitation Act 1980 lists the factors that the court will take into consideration when deciding whether or not the limitation period should be extended. This includes the reasons for the claimant’s delay in bringing the claim and whether or not the Defendant would suffer any prejudice in the delay in a claim being brought now. This was established in the case of A v Hoare [2008] 1 AC 844. In a more recent case this year, EB v John Haughton [2011] EWHC 279 (QB), the judge also exercised her discretion pursuant to s33 to dis-apply limitation and allow the claimant’s claim to proceed.
In some cases limitation may prove more difficult and, therefore, the claimant’s reasons for the delay in bringing a claim must be supported by good psychiatric evidence and any other documents such as medical records. The report should specifically deal with the issue of limitation and have regard to the s33(3) factors in order to persuade the court to grant an extension. In cases where a claimant brings a claim against an individual defendant for abuse, a conviction of the defendant in the criminal courts for that abuse would prove useful for limitation purposes.
What You Need To Prove To Be Successful
Once the hurdle of limitation has been overcome, the claimant must prove that the abuse actually occurred and that there has been a breach of duty. The court will look at the nature of the sexual assaults and the harm suffered to the claimant at the time. Again, in cases against an individual defendant for assault, a criminal conviction will assist. In other cases against local authorities such as a negligent placement in a children’s home or with inappropriate foster carers, an expert will be instructed to comment on whether or not there was a breach of duty.
The claimant must then prove that that particular breach of duty is the cause of the damage they have suffered. The test used is that on the balance of probabilities the damage that the claimant has suffered would not have occurred had they not been abused. This is known as ‘causation’. If, however, the claimant would have suffered damage in any event then there will be no claim. In order to show this, in cases other than claims against individuals for sexual abuse, the medical expert will also comment on causation in their report. This will usually be a psychiatrist. The expert will also provide a diagnosis within their report and comment on the claimant’s prognosis.
Funding
There are numerous ways to fund a child abuse claim. Public funding is currently available for these types of claims and this will cover our costs and disbursements. If a client is not eligible then we will investigate whether or not the client has a legal expenses insurance policy that covers the cost of investigating the claim. If, this is not applicable then we also offer Conditional Fee Agreements (‘No Win No Fee’) to fund cases. This means that if a client is successful then they will be responsible for our costs but these can be claimed from the defendant. If a client is not successful and is funded by such an agreement then they will not have to pay any costs at all.
Process of Bringing A Claim For Child Abuse
The process for bringing a child abuse claim, whatever the specific cause of action, is largely the same. In the case of claimants that are minors or protected parties, i.e. they do not have capacity to conduct proceedings themselves, Anthony Gold Solicitors will often receive instructions from the Official Solicitor’s Office.
In cases whereby an adult wishes to bring a claim for abuse suffered as a child we take instruction from the client directly. If the defendant is an individual, the first step to take is to ensure that the defendant has sufficient assets to pay an award of compensation to the claimant. If they do not have any means to do this then there is little point in pursuing a claim. If they do however, we can take urgent steps to ensure that the defendant does not dissipate their assets in the knowledge of a claim being made against them.
Once we have taken instructions, the next step is to request the client’s records including but not limited to medical records, social services records, school records, employment records and counselling records to name but a few. From the initial instructions and records, we can then draft a comprehensive witness statement for the claimant setting out in detail everything that has happened in chronological order.
The next step is to instruct an expert to produce a preliminary report on breach of duty. The type of case being pursued will dictate the type of report that is produced. If it is a claim for abuse against an individual defendant then a condition and prognosis report from a psychiatrist will be requested. If it is any other type of case, as discussed above, a liability and causation report will be required first. An independent social worker will be instructed to review all the records and comment on the standard of care the claimant received while in the care of social services. If this produces a positive report, the psychiatrist will then be instructed to examine the claimant and prepare a condition and prognosis report in respect of their psychological well being. The psychiatrist will be able to make a diagnosis, if any, and recommend any form of treatment. Reports from other experts may also be necessary depending on the client’s individual circumstances.
A Schedule of Loss and Damage will be drafted setting out all the financial aspects of the claim. This is explained further in the next section. We will then arrange for the client to meet with a barrister in conference to discuss the case. A Letter of Claim will then be sent to the defendant setting out the likely allegations of the claim. The defendant must acknowledge this letter within 14 days and they will then have 4 months to provide a detailed response.
Depending on the defendant’s Letter of Response, it is often worth considering making an offer to settle the claim. If, however, no settlement can be reached at this point we will issue proceedings at court. Once a claim form has been issued, the court will set down a strict timetable for the parties to follow. This will include dates for exchange of witness statements and expert reports. The time from issuing a claim at court to trial can be between 18 to 24 months but throughout this period either party can make offers to settle the claim.
Once settlement has been reached, we will draft an Order for the court to approve. This will include a term that the claimant’s compensation is paid in full within a certain amount of time, usually 21 days. It will also include a provision for the defendant to pay the claimant’s reasonable costs. Where the claimant is a child or protected party, an infant approval hearing will be required at court whereby a judge will approve the settlement. Costs relating to the claim are dealt with afterwards and Anthony Gold Solicitors does not take any shortfall from the claimant’s compensation.
What Can You Claim For?
Unlike criminal law, a civil law claim is for compensation only and cannot punish the abuser. There are numerous heads of damages that a claimant can claim for and these are all listed in detail in the Schedule of Loss and Damage.
General Damages
Firstly, there is a claim for general damages. This is damages for pain, suffering and loss of amenity. In order to calculate this amount we look at what the claimant has suffered, how it has affected them and how it continues to affect them. This is usually done by reference to case law but this is difficult in child abuse cases as no two cases are the same. We also look at the ‘JSB Guidelines,’ a guide which lists all types of injury and provides a tariff style system of amounts of compensation for those injuries. These are, however, of limited use in child abuse cases.
Special Damages
In addition to general damages, a claim can also be pursued for special damages. This is the cost of specific items of expenditure incurred because of the injury, i.e. out of pocket expenses. This can include past and future losses. The following is a non-exhaustive list of items that can be claimed for;
- Treatment costs – this can be found in the condition and prognosis report of the psychiatrist. A diagnosis is usually made and recommendations for treatment are usually given, for example, sessions of cognitive behavioural therapy and the cost.
- Loss of earnings & loss of earnings capacity – this is an amount for what the claimant would have earned had they not been abused minus anything they have earned since. This can be calculated by way of a lump sum or can be determined by reference to specific jobs and salaries over the years.
- Expenditure on alcohol – The leading case is Eagle v Chambers [2004] EWCA Civ 1033. In this claim the claimant claimed for the additional cost of cigarettes she consumed as a result of a brain injury. It was accepted that if the medical evidence showed that the brain injury had led to an increase in consumption where the claimant had no choice in the matter, then this head of loss could be recovered. In the more recent case of BJM v Eyre, Hawthorne, Loram and Riley [2010] EWHC 2856 the judge rejected the claimant’s claim for the additional expenditure on alcohol over and above that which would have been incurred in any event had he not been abused. The judge concluded that the claimant could chose to control his drinking and he had done so in the past and so it was not recoverable. This is, therefore, a difficult head of damage to prove unless it can be shown that the claimant cannot control their drinking.
- Loss of an education
- Loss of familial support
- Care costs
- Loss of a chance of adoption
- Aggravated and exemplary damages – i.e. an amount of money for injury to dignity and pride, to feelings, for humiliation, anger and resentment.
Conclusion
No amount of money can truly compensate for emotional, physical or sexual abuse a person suffered as a child. At Anthony Gold Solicitors, however, we can help to alleviate the pain and effect that such abuse has had. If you would like further advice on the matters raised above or would like to speak to someone about your claim in confidence, please email Stephanie Prior on 020 7940 4001.
For further information email the child abuse team or call 020 7940 4000.
