SUBMITTED TO THE HOME AFFAIRS COMMITTEE
Submitted by the Association of Child Abuse Lawyers (ACAL) (CA 122)
ACAL is an organisation of lawyers who act on behalf of people who have suffered sexual and physical abuse in childhood. Although ACAL is involved in a wide range of support activities for victims of abuse, our members are primarily involved in bringing compensation claims on behalf of victims. Our members include solicitors and barristers who are acting on behalf of claimants in all of the major group compensation claims which have been brought regarding historic abuse in residential homes, school, etc. We are therefore well placed to comment on issue (four) identified by the Committee in its terms of reference for this inquiry, namely the question of whether there "is a risk that the advertisement of prospective awards of compensation in child abuse cases encourages people to come forward with fabricated allegations".
The claim that former residents of children's homes make false allegations in order to obtain compensation is easy to make but is rarely, if ever, substantiated by hard evidence. The argument is based on three false premises:
1. That most complainants of abuse bring compensation claims: only 32 per cent of Operation Care Complainants have done so; the figures for other investigations are even lower.
2. That complainants are generally aware of the possibility of compensation at the time at which allegations are first made: on the contrary, close scrutiny of individual cases typically reveals long time lapses of months and years between first disclosure of abuse and instigation of a compensation claim. In North Wales, most of the allegations which were investigated by the Waterhouse Inquiry (1997-98) had been made to the Police initially in the early 1990s; civil compensation claims were not initiated until 1998.
3. That the compensation issue is "hidden" from Courts and juries: on the contrary, in any individual cases, the existence or otherwise of a "compensation motive" can readily be established from the surrounding courts. In the course of a criminal trial, the Defence will scrutinise the context in which allegations of abuse are first made (when, to whom, in what circumstances). The time period between allegations first being made and any subsequent compensation claim may be questioned. The issue of compensation is also likely to be raised by Defendant's lawyers during the trial. It may be possible for the criminal defendants legal team to ask for disclosure relating to the compensation claim.
The Committee's terms of reference refer to "advertisement" of prospective compensation awards. Such "advertising" is, in reality, rare. We would have no objection to advertising of compensation being prohibited for the duration of criminal proceedings, if the Committee felt that such a safeguard would assist. The Committee should appreciate, however, that such a prohibition would make no difference to the current situation because "prospective compensation awards" are not typically "advertised" by lawyers in any event.
It should be noted that a number of Police investigations relate to the institutional abuse of children and adults with learning difficulties. Three factors are relevant here:
1. Many of these complainants are incapable of understanding the concept of causation, namely that if they were to make up false allegations this could lead to a financial gain for themselves.
2. Many of these complainants are incapable of understanding the value of money as they may well be deemed to be "Patients" due to their inability to manage their own affairs, and as a result compensation is likely to be held in Trust for them.
3. Often allegations come to light not through verbal disclosure but by acknowledged signs of abuse being recognised by professionals. This is often due to changes in behaviour, and again it would be difficult for the complainant to fabricate these, and they would also probably lack the motive to do so even if they were aware that such signs were demonstrative of abuse.
Often it is a family member, advocate, social worker or other professional who commences the legal claim on behalf of these vulnerable people. Our experience does not show a financial motive, see a typical quote from a family member in relation to cases such as these:
". . . it was the total lack of communication from the Defendants that involved our family in this action. They failed to respond to letters and it was this indifference that made us take this route. This has never been about money with us, only the fact that the Defendants never applied the findings of previous inquiries, never acknowledged their incompetence in the running of the home, failed to answer parents' questions that deserved a right of reply, and the obvious conclusion was that they may never learn a lesson from their shortcomings and therefore possibly exploiting more vulnerable children to similar and abhorrent situations. We may never get a penny from this action but if we have helped to expose their incompetence and force changes to rules and procedures in the running of such units then our action has been worthwhile".
In summary: the suggestion that allegations are "compensation led" has a superficial plausibility but on closer examination of the facts of individual cases is found to be unsupported in the vast majority of cases. Thus, in considering the issue it is essential for the Committee to look beyond generalities and seek unequivocal evidence from those who make this claim. We are conscious that the Committee (quite properly in an Inquiry of this sort) will not be examining individual cases, but therein lies a real difficulty in testing the argument about the compensation motive. It is in the detail of the individual cases that the irrelevance of compensation as a factor becomes clearly evident.