There is a vogue for historic abuse inquiries in the English-speaking world. The latest attempt by the Government to set up such an inquiry has foundered, after the powerful victims’ lobby vetoed a second proposed chair. A well-known claimant law firm, alongside various survivor charities that effectively act as complainants’ unions, threatened a boycott of the inquiry unless Fiona Woolf resigned.
Now there are demands for the inquiry to be victim/ survivor-led, i.e. dominated by one constituency. But what about fairness to those accused of failings?
- The writer’s opinions are personal
The Government has made a rod for its own back. When the Home Secretary set up this inquiry, she stated that recent scandals about organised child sex abuse had ‘shaken confidence in the pillars of society in which we should have total trust’.
As critics have observed, its terms of reference are so wide as to be unworkable:
‘To consider the extent to which state and non-state institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; and to publish a report with recommendations.’
The bodies to be investigated include:
- Government departments, parliament and ministers;
- Police, prosecuting authorities, schools including private and state-funded boarding and day schools, local authorities including care homes and children’s services, health services, prisons/secure estates;
- Churches and other religious denominations and organisations;
- Political parties;
- The armed services.
Its methodology includes considering ‘all the information which is available from the various published and unpublished reviews, court cases, investigations etc which have so far concluded’.
There is no expressed time limit. But going over previous reviews, court cases, investigations etc., is surely reinventing the wheel. For example, the panel’s expert is Professor Alexis Jay, who authored the enquiry into child sexual exploitation in Rotherham. What is this panel to do with her report: presumably, rubber-stamp it?
A conceptual flaw in this proposed exercise is that the notion of a ‘duty of care’ is relatively recent in this context. It was not until May 2001 that a Grand Chamber of the European Court of Human Rights ruled that former children should have a right to sue the state for failing to take them into care promptly. That case did not concern allegations of sexual abuse, but severe physical and emotional neglect. It began as an action in negligence in the domestic courts. The claim was struck out because, on public policy grounds, the courts were not prepared to impose such an open-ended duty on local authorities.
By the time it reached the Strasbourg court, the case had morphed into a claim of torture, contrary to Article 3 of the European Convention. The court concluded that the UK had failed to afford the petitioners an effective remedy under Article 13 for allegations that their Article 3 rights had been breached. Counsel for the petitioners included Ben Emmerson, now counsel to the Independent Panel Inquiry.
A further flaw is the preoccupation with sexual abuse, to the exclusion of other types of abuse. This privileges certain categories of victims over others. A similar myopia afflicts victim/ survivor groups, which are strongly influenced by the US recovery movement. They view all forms of sexual abuse as pathogenic, causing lifelong damage. They also claim that the sequelae of abuse can include just about anything, from lack of confidence to psychosis.
The flaw in this approach is obvious: correlation does not necessarily imply causation. Nevertheless, these groups attribute all victims’ ‘here and now’ problems to ‘then and there’. This mechanistic approach sends out a bleak message, which probably does more harm than good to some victims.
As Professor Philip Jenkins has said:
‘Though expressed in psychological terms of self-help, the recovery movement owed its strength and resilience to its pervasive ideological and religious quality. … Also recalling religious systems is the emphasis on faith, of belief in the testimony of others, even if it directly contradicts common sense: the children, external or internal, must be believed at all costs. As with any religion, survivorship implies a total world-view impervious to disproof or even challenge by conventional standards of evidence or rationality.‘
An inquiry is not a substitute court, which can make findings of civil or criminal liability. This proposed inquiry is an expensive, symbolic but ultimately futile gesture: shutting the door long after the horse has bolted.
It would be more constructive for a select committee to consider the workings of the current care system, which is intended as a safety net for children in need, whose parents cannot or will not take care of them.
As matters stand, many authorities complain that they lack the necessary funds to do their child protection work effectively. It is acknowledged that children in care tend to come from the poorest and most marginalised sections of our society. Until these underlying problems are tackled effectively, nothing is likely to change.
Author: Barbara Hewson
Barbara is a barrister practising at 1 Gray’s Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.