Consultation Paper Seeks Reform of Limitation Law in Child Sexual Abuse Cases

Articles

22/05/2024

The Ministry of Justice has released a consultation paper seeking views on potential reforms to the law of limitation in child sexual abuse cases in England and Wales.

Under the current law, child sexual abuse cases in civil courts are subject to the same three-year limitation period as personal injury claims, subject to the court’s discretion under section 33 Limitation Act to grant extensions where there are legitimate reasons for delay. Nearly all historic child sexual abuse claims are brought outside the standard time limit and will rely on an application under section 33.

The consultation explores various options for reform, taking into account recommendations made in October 2022 by the Independent Inquiry into Child Sexual Abuse (“the Inquiry”). The government aims to strike a balance between the rights of victims and survivors to seek justice and compensation, and the need to ensure a fair trial for defendants.

The consultation paper presents several options for potential reform of the law:

  1. Complete removal of the limitation period: The most straightforward measure, recommended by the Inquiry, the obvious rationale of which is to remove barriers that prevent victims and survivors from seeking compensation. However, concerns are raised about the potential impact, as claims could be brought many decades after alleged incidents without any consideration of the fairness of so doing. The government’s initial position is not to support this option, but it remains open to additional reforms.
  2. Reversal  of the burden of proof: Currently, if a defendant raises limitation as a defence, the claimant must persuade the court to allow the claim to proceed. Reversing the burden of proof would place the onus on the defendant to demonstrate that a fair trial is not possible or that they would be substantially prejudiced by the claim proceeding. This appears to be the government’s preferred option at this stage.
  3. Codification of existing judicial guidance: This option proposes codifying the existing judicial guidance (mostly that contained at para 42  of the Court of Appeal in Chief Constable of Greater Manchester Police v Carroll [2017]) on the exercise of discretion under Section 33 of the Limitation Act. The aim is to provide greater clarity and legal force to the guidance, ensuring that courts formally consider it when determining s33 applications. The government sees merit in this option and believes it would strengthen the existing judicial discretion, but to others, including the author, it would appear to add little, lower courts being obliged to make their decisions consistent with Carroll in any event.
  4. Reopening of adjudicated or settled claims: While some jurisdictions have allowed the application of new legislation to previously resolved cases, the government’s position is that it would not be appropriate to legislate for reopening such cases. The government cites the principles of certainty and finality as fundamental aspects of the rule of law.
  5. Extending the definition of abuse: The consultation will consider whether the definition of abuse should be expanded to include other forms of abuse, such as physical and emotional. The government’s current position is currently to limit the reforms to child sexual abuse claims, as the case for reform has been extensively explored by the Inquiry in relation to child sexual abuse specifically.
  6. Adjusting the factors in Section 33 of the Limitation Act in relation to child sexual abuse cases: ​This option suggests adjusting the factors in Section 33 to recognize the particular circumstances surrounding child sexual abuse. The aim is to ease the burden on claimants by accepting child sexual abuse as a valid reason for delay without requiring further details.​ The government welcomes views on the case for and against this reform.
  7. Extend the limitation period for child sexual abuse cases: This option would see what may be a drastically extended limitation period, even up to 30 years, for child sexual abuse cases. The government’s current view is that this option would just introduce a different but equally arbitrary time limit and would still leave the burden on claimants to persuade the court to disapply the time limit.
  8. Procedural Reform: Currently, the Pre-action Protocol for Personal Injury Claims applies to child sexual abuse claims, the aims of which can sometimes be inconsistent with the difficult considerations involved in sexual abuse cases. The government seeks views on whether there should be  a bespoke pre-action protocol for child sexual abuse claims.

The consultation is open to all those involved in or with an interest in civil proceedings in England and Wales, including victims and survivors, legal professionals, the insurance industry, and members of the judiciary.  The government encourages stakeholders to provide their views on the proposed options for reform. The consultation link is found here and deadline for submissions is July 10, 2024. The government will consider responses and publish a response setting out the way forward at a later date.

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Theodore Bunce

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