Insights

UK Government plans to “make it easier and less traumatic for victims of child sexual abuse to pursue historic claims through the civil courts.”

Logo of the UK Ministry of Justice.

On May 15, the UK government announced new proposals that will “make it easier and less traumatic for victims of child sexual abuse to pursue historic claims through the civil courts.”

The announcement comes in response the Independent Inquiry into Child Sexual Abuse (IICSA), which issued its final report and recommendations in October 2022. As part of IICSA’s recommendations, it called on the government to (a) remove the current three-year limitation period for claims brought by victims and survivors of child sexual abuse in respect of their abuse and (b) to place the burden of express protection of the right to a fair trial on defendants. The government has accepted only the second of these recommendations.

In England and Wales, civil claims arising from child sexual abuse must be brought within three years of the claimant turning 18, unless the court grants an extension. Cases brought after this three-year period are not automatically rejected, but if a defendant raises limitation in their defence, it is currently the responsibility of the claimant – i.e., the victim and/or survivor of child sexual abuse – to persuade the court that a fair hearing is possible.

The government has stated that its proposals will “reverse [the] burden of proof” in child sexual abuse cases, meaning cases will proceed automatically unless the defendant can demonstrate that a fair trial is not possible.

Burden of proof and fair trial in child sexual abuse claims

Strictly speaking, the government’s proposal will not “reverse the burden of proof”. Civil claims for child sexual abuse are almost always personal injury claims in which the claimant is seeking general damages for their pain, suffering and loss of amenity, as well as special damages for their past and future financial losses, including the loss of earnings and medical or therapy costs. Claimants will still need to prove that their allegations are true, and that the damages for which they are seeking compensation were caused by their abuse. The defendant’s right to a fair trial, which is enshrined in both common law and Civil Procedure Rules, will remain in place. However, it will fall on defendants to prove that limitation presents a barrier to a fair trial at the primary stage.

While not quite amounting to a reversal of the burden of proof, the proposed changes should reduce the amount of time claimants spend fighting limitation as a preliminary issue and result in a greater number of claims progressing to trial.

The problem of limitation

IICSA’s final report states that placing the burden of express protection of the right to a fair trial on defendants “has the benefit of providing clarity and recognises that the removal of the primary limitation period does not compromise defendants’ basic rights” (italics added).

In our view, the government has adopted a somewhat confusing position with respect to IICSA’s recommendations, accepting the supporting argument while disregarding the primary aim of removing limitations in all cases involving child sexual abuse. This is a poor decision. We know that victims and survivors of child sexual abuse can take years to process what happened to them. Unfortunately, by the time they are prepared to confront their abuser in court, primary limitation has often expired. While the courts can (and often do) exercise discretion to allow these claims to proceed, the restrictive time limit places an unfair burden on those who have carried the trauma of sexual abuse around with them for years.

The current law gives many victims and survivors of child sexual abuse until their 21st birthday to confront their abusers in court. This is a time of life when many young people are completing their studies, beginning their first career, or generally trying to establish what adult life will look like. It is a particularly bad time to engage with a potentially lengthy legal process.

At the same time, the law effectively punishes anyone who files within the current three-year limitation period. This is because the value of compensation awarded to claimants tends to be proportional to the damage they have suffered and associated financial losses, including the loss of earnings. Clearly, it is harder to document significant loss of earnings before the age of 21, meaning claimants who do not want to run the risk of their claim being rejected at a later date must accept a lower level of compensation while signing away their right to pursue legal action later in life.

Although the three-year limitation period will remain in place, victims and survivors of child sex abuse should be aware that the court has broad discretion to hear claims brought after this time. It is not surprising that many claimants wait until later in life before pursuing justice. The reasons for this delay will be considered by the court, and claims may be allowed to proceed many years after the abuse took place, even if it introduces unfairness to the defendant.

McAllister Olivarius has a proud history of helping victims and survivors fight their abusers. We know how difficult it can be to discuss traumatic incidents from your past, but our experienced, trauma-informed solicitors will help guide you through the entire process.