WIREDGOV

Tackling the time-bar barrier to access to justice faced by survivors of abuse.

The Scottish Government proposal to remove the three-year time limitation period (also known as time-bar) for bringing civil action in cases of historical child abuse is to be explored in a consultation launched by Justice Ministers yesterday (25 June).

It follows a statement by Cabinet Secretary for Education and Lifelong Learning, Angela Constance, when she announced the details of the Inquiry into historical child abuse, committing to the removal of the current limitation period.

The consultation paper seeks views on:

• the definition of a child
• the settings to which the change in law should apply
• the types of abuse which should be covered

The Minister for Community Safety and Legal Affairs, Paul Wheelhouse, in launching the consultation stated:

“Survivors of historic abuse have to live with the consequences of the traumatic crimes committed against them which can leave mental and physical scars for the rest of their lives and the impact can be devastatingly far-reaching and long-term. Scotland is one of the few countries in the world with dedicated support to try and help survivors overcome the negative impacts upon their lives, with the support services from SurvivorScotland.

“For survivors, time-bar is a significant hurdle which can deny them access to justice and can place added stress on people who are already living with the consequences of the abuse they have suffered.

“Those who have experienced violent and sexual abuse as a child should not have to demonstrate to the court that they have a right to raise litigation before their case can proceed. While the court has some discretion on waiving time bar, the experience of many survivors suggests this is not sufficient to allow them to pursue their abusers and forces them to have to go through recall of traumatic events simply to exercise their rights to a civil action. The circumstances of survivors of historic abuse, in particular, as well as, the class of pursuer, the type of injury and the impact on the victim are such that they should have a right to bring a civil action for damages whether or not the three-year limitation period has expired.

“As a further demonstration of our clear intent and commitment to this issue we will also publish a draft Bill, informed by the responses to this consultation, before the end of this Parliamentary Session.”

The Scottish Government intends to take action to lift the three-year limit on civil cases taken forward by survivors of historic child abuse occurring after 26 September 1964. This is a significant step forward for survivors. The legal issues for cases before this date have proved too difficult to overcome. This relates to the application of the law on prescription and human rights concerns. The Scottish Government has consulted and engaged widely with survivors of historical child abuse and will continue this dialogue to consider how we can address their concerns.

The issue of the ‘time bar’ only applies to any civil cases that might be pursued Criminal cases can already be brought against perpetrators of abuse that occurred before 26 September 1964.

The consultation will run from 25 June 2015 for a period of 12 weeks. A copy of the paper can be viewed at:http://www.gov.scot/Resource/0048/00480345.pdf

Notes To Editors

An action for damages in the civil courts in Scotland for any form of personal injury must, currently, be raised within the timeframe set out in the Prescription and Limitation (Scotland) Act 1973. 

The time-barring of civil actions have sought aim to strike what was viewed as an appropriate balance between allowing a reasonable opportunity to make a claim for personal injury and the protection against open-ended civil liability. 

The law regarding limitation provides for a three-year limitation period for personal injury actions. This means any action must begin within three years of sustaining an injury or within three years of becoming aware of an injury. If the injured person is under the age of 16, the three-year period would start when they reach 16. The court has some discretion to allow an action to commence after the three-year limitation period has lapsed if the evidence shows it would be equitable to do so, but this requires the pursuer being required to prove why judicial discretion should be exercised– even before a civil case can be allowed.

The Scottish Human Rights Commission Action Plan on Justice for Victims of Historic Child Abuse of Children in Care recommended a review of the way in which time-bar operates. The Scottish Government response in October 2014 committed to working with survivors and other key legal sector stakeholders to understand the difficulties and how they could be overcome. The Cabinet Secretary for Education and Lifelong learning announced on 28 May that the Scottish Government would consult on the intention to remove the three-year limitation period.