Consultation on the Removal of the 3 Year Limitation Period From Civil Actions for Damages For Personal Injury for in Care Survivors of Historical Child Abuse

Overview

On 28 May 2015, Angela Constance MSP, Cabinet Secretary for Education and Lifelong Learning addressed the Parliament on the National Inquiry into Historical Child Abuse1 . This was the culmination of a lengthy process of collaborative working between the Scottish Government, the Scottish Human Rights Commission (“the SHRC”) and other key stakeholders. A timeline of that work is set out at Annex A.

In that announcement, the Cabinet Secretary set out the package of measures to support survivors of historical abuse. These included:

• The Terms of Reference of the Inquiry;
• The Chair of the Inquiry; and
• An update on a survivor support fund

The Cabinet Secretary also advised of the action that the Scottish Government is taking in response to the SHRC recommendation on time-bar. Acknowledging that delivering the right to reparation called for by survivors through the SHRC interaction process would involve removing the time-bar, which requires a civil case for damages to be brought to court within the 3 year limitation period, the Cabinet Secretary announced that the Scottish Government intends to lift the 3 year time-bar on civil actions in cases of historical childhood abuse that took place after the 26th of September 1964.

Ministers are of the view that the victims of child abuse should not have to demonstrate to the court that they have a right to raise litigation before the case can proceed. The circumstances of survivors of historic abuse, in particular, the class of pursuer, the type of injury and the impact on the victim are such that they should be treated differently. For these reasons the Scottish Government intends to remove the application of the 3 year limitation period (time-bar) from personal injury actions raised by victims of child abuse.

This consultation seeks views on a number of matters around the removal of the 3 year limitation period for survivors of historical abuse. Responses to the consultation will inform the development of legislative proposals to remove the 3 year limitation period. Scottish Ministers aim to ensure that any resulting legislation is fit for purpose, with no unintended consequences and that it takes account of all relevant perspectives, including equalities considerations and any potential financial and regulatory implications.

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 the 2015/16 Parliamentary Session. 

Why your views matter

As the Cabinet Secretary set out to Parliament, on Thursday 28th May, the Scottish Government has given serious consideration to a legislative solution to the application of the law of prescription on cases of abuse which occurred before the 26th of September 1964. For the reasons detailed in Chapter 3 of this consultation, the legal issues relating to the removal of the law of prescription for these cases has proved too difficult to overcome. This consultation, therefore, seeks views on the removal of the 3 year limitation period only. As part of our wider engagement with survivors, we will continue to listen to the views of survivors of historical abuse who suffered abuse prior to the 26th of September 1964 as to how their needs and concerns may be addressed.