Regarding the provisions in the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill as introduced, what the burden of pr…

The stage 2 proceedings for the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill concluded on Wednesday 17 February 2021. Given the importance of Redress Scotland being independent, the burden of proof lies with the applicant. This means it is for the applicant to establish the facts of their application to the required standard. However, we want survivors to be able to access the redress they deserve, and, as has been explicitly recognised within provisions of the Bill, support will be provided to help applicants obtain evidence. This may include practical support in accessing records or other information, as well as emotional support throughout the process. We do however, recognise that in some exceptional cases, the evidence may simply not be found. In these exceptional cases, after all avenues have been exhausted, it is anticipated that the guidance materials will provide that the decision-making panel of Redress Scotland will be able to consider the account provided by the applicant, and use its discretion to determine whether it is satisfied that the applicant meets the eligibility criteria despite a lack of documentary evidence (for instance taking into account whether it would be expected that documents from an institution or organisation would be available).
The standard of proof that has to be satisfied is the civil standard of proof, “on the balance of probabilities”. This means that something was ‘more likely than not’ to have occurred. While a civil standard of proof will apply, redress will operate in fundamentally different ways to traditional civil legal action. The redress scheme will not have to establish liability and can take a different approach to the consideration of evidence. For example, the same rules on the admissibility of evidence will not apply, nor will the survivor be cross–examined on their account. The Bill as amended also contains a presumption of truth, meaning that the starting point for the decision-making panel is that the information provided by the applicant is true and accurate to the best of the applicant’s knowledge and belief. Survivors can be assured that the scheme has been set up because they are believed and that they will be helped in accessing any and all information and evidence to support their application in meeting the necessary standard of proof.