New Petitions

I thank the committee for inviting us to today's meeting.New rules and procedures for personal injury actions in the Court of Session that came into force on 1 April 2003 introduced a fast-track system as recommended by a working party under Lord Coulsfield. We want institutional child abuse personal injury cases to be handled in the same way as asbestosis cases, to ensure that they are dealt with within 12 to 13 months. We understand that, as well as the recommendations made by Lord Coulsfield's working party, recommendations made by the Scottish Parliament and the Executive led to courts showing sensitivity to users' needs.We are calling for a review of the Prescription and Limitation (Scotland) Act 1973 because there appears to be an oversevere interpretation and application of the defence of limitation in the Scottish courts. As a result, many personal injury cases that are brought by survivors of institutional child abuse cannot get off the ground. In that respect, there is a huge inconsistency with similar cases south of the border. For example, although actions that were raised as a result of abuse at Bryn Alyn children's home in north Wales were met with a time bar defence, the House of Lords refused leave to appeal and awards of £50,000 were made to the 14 claimants.On the third element of the petition, in 2001, the Law Commission suggested improvements to the law to make it fairer for survivors of abuse to start legal proceedings years after the event. The commission recommended that the definition of disability or incapacity be widened to suspend the limitation period during the currency of the disability or incapacity. It was also recommended that the definition of disability under the 1973 act include the inability due to mental disability to make a decision on the matter in question. The effects of child abuse, such as disassociative amnesia, clearly fall within the definition. Further, the Law Commission recommended that the individual characteristics and legal knowledge of the pursuer should be taken into account.

That is right.

I understand that many people with the industrial illness asbestosis died before their cases could be brought to court. However, mortality levels for sufferers of institutional child abuse are also high, although perhaps not as high as in the case of asbestosis sufferers. For example, eight clients involved in civil actions have died in the past year. People in some test cases are filling the shoes of people from previous test cases who died while waiting for the cases to be brought to court. The effects of abuse increase mortality levels among survivors.

No, they were relatively young. For example, in one case the person was in their 50s. Abuse survivors have a decreased life expectancy.

Alan Draper can come in on that.

A number of clinical studies from the United Kingdom and elsewhere show clearly the impact of in-care abuse on children who spent long periods in institutional care and who probably also came from disruptive family backgrounds. They have problems with self-esteem and creating relationships, and those who suffered abuse that persisted over many years often feel that life has no meaning. Many of them maintain the hope that somehow their particular situation will receive justice. However, the delays that they feel the process creates—sadly, there are delays after delays—leads them to commit suicide rather than try to cope with the difficulties of life. They say, "Nobody is really interested in us."This is the first opportunity that I have had to thank the committee on behalf of In Care Abuse Survivors/In Care Abuse Support—the group that I chair—for the First Minister's apology last December for what happened in the past to those who suffered institutional abuse. We felt that that was a major step forward, which INCAS members widely welcomed.We now seek resolution, but how do we solve the problem? We feel that the time bar is restricting justice and that surely cases can be fast tracked. The Law Commission is looking into that, but we feel that the state is enormously complicit in the situation, because it is responsible for the regulations and it must acknowledge the effects of the time bar. We want matters to be dealt with urgently.

The limitation is applied severely. Section 17 of the Prescription and Limitation (Scotland) Act 1973 contains a delayed discovery rule that extends the basic three-year period until it would have been reasonably practicable in all the circumstances for a person to become aware of the relevant facts; for example, if the injuries in question were sufficiently serious to result in an action. The courts in Scotland have discretion to extend the time limits and thus override the prescribed time limits where it seems equitable to do so. However, there have been quite a few cases in which the provisions of section 17 were disregarded.

I think that the age range of INCAS members is from mid-30s to late 50s.

Our oldest member is 96; he was abused in 1919. He is not taking any action on that abuse; he merely wants to support the group in its work. I was speaking to him only yesterday, although he is a man in failing health. Abuse goes back generations. However, most of our members are in their 40s, 50s and 60s.

Some cases were brought as far back as the late 80s, and the people involved still have not had closure. Those cases have been going on for years and years, and therefore consideration should be given to fast tracking them. We could come and go on that, but we are not talking about many years; cases should be dealt with within a year or two.

We feel at the moment that no sooner do we get over one hurdle than we come to another. We are still knocking down hurdles; we are nowhere near fast tracking. Lady Paton recently gave a judgment in the Court of Session on abuse at the De La Salle order's schools. Her judgment clearly indicated that the issue of a time bar should be looked at. However, the advice that we have received from our lawyers is that that could take four to five years. People cannot wait that long; the issues need to be dealt with now.

In 2001, the Law Commission issued a report on the limitation of actions. The Association of Child Abuse Lawyers, which is waging a campaign, politically and through the media, is wondering why the legislation that was recommended in that report has not been brought into force. The Law Commission in England, which produced the report, works hand in glove with the Scottish Law Commission. Both commissions have made recommendations in relation to the time limitation issue that are not being taken up by the Government.

We should be asking questions of the Scottish Law Commission. When does it hope to produce its paper? We should certainly remind it of the existing recommendation on legislation.

It was not a UK report. I believe that it was a report for England. However, as I said, the Law Commission in England works hand in glove with the Scottish Law Commission and the report would apply equally to Scotland.

It takes many years, from when they approach the solicitor to when they report criminal activities to the police.

Some people do not grasp the fact that the process is long and drawn out. It can be extremely frustrating. Many of the survivors have issues with drugs or alcohol—they are knock-on effects of the abuse—which also devastate their lives. That will obviously have an effect in the family home if the individual is married. Survivors find it difficult to form relationships anyway. As I said, abuse devastates people's lives.

There is a huge inconsistency with cases south of the border. There have been many cases there where there has been closure, including that of the Bryn Alyn children's home. There have been various claims against Leicestershire County Council and Flintshire County Council. The cases in England and Wales have produced favourable results for claimants. They have seen justice. Here in Scotland, we are lagging behind.

We have been speaking about closure, which is a complex area in itself. Survivors often want representatives from the institution or organisation that they view as being responsible for what took place to sit down with them and say sorry. That does not just mean a public pronouncement. They should sit down and ask survivors how they can help them and how they can resolve the situation. Closure is not just about achieving justice; reconciliation afterwards is also necessary. A victim wants a degree of reconciliation and understanding. We have written to many organisations, seeking to discuss things with them. We have received varying responses—I will put it that way.

There are certainly hundreds.

Yes, there are hundreds of civil actions. There are also other people who are involved in INCAS who have not brought civil actions.

One of the lawyers involved has 600 cases.

Yes.

That is just one of the lawyers involved.

I would like to add that we are working closely with representatives of the Executive, and we have been addressing those issues. We are very grateful for the co-operation from the Executive in that regard.

Thank you for your time.