Will the law on limitation for Child Abuse Cases change?

Jordans Solicitors have responded to the Government’s consultation on the reform of the law of limitation in child sexual abuse cases in England and Wales.

The Consultation, which closed on the 10th July 2024 considered the recommendations of the Independent Inquiry into Child Sexual Abuse (IICSA) and the use of limitations in other jurisdictions. The Government sought views on the removal of limitation for these cases and other options which can replace the current law.

The current law is contained in the Limitation Act 1980. This states that a person must present a claim within three years of the event or if the event took place as a child by the age of 21 years. Section 33 of the Limitation Act provides the Court with a discretion to set aside this time limit.

The Court must consider the length of and reasons for the delay, whether a fair trial remains possible irrespective of the delay, the conduct of the Defendant, whether the Claimant has acted promptly, and the steps taken by the Claimant, together with the duration of any disability on the part of the Claimant.

Whilst this does provide the Court with discretion to consider the psychological impact of the abuse that has been suffered by the Claimant, the onus is on the Claimant to persuade the Court to set aside the limitation period. This is distressing for the Claimant as it means that the whole live is examined and questions asked whether they could and should have come forward earlier and ultimately whether this delay prevents them from being able to pursue their claim.

IICSA published their final report in October 2022 and made 20 recommendations and specifically made a recommendation on the issue of limitation. Their recommendation was that;

“The UK Government should change the law to remove the time limit for victims and survivors of child sexual abuse to make a legal claim for compensation. These provisions should apply whether or not the current three-year period has already started to run or has expired, except where claims have been dismissed by a Court or settled by agreement. The right to a fair trial should be expressly protected. These changes should not apply to claims brought on behalf of the estates of victims and survivors.”

It is our view that there is a need for change. The current law is not suitable for child sexual abuse cases. We now know that very few survivors of child sexual abuse can bring their claims before the expiration of the limitation period.

This was confirmed by Lady Baroness Hale in the case of A -v- Hoare in 2008:

“Until the 1970’s people were reluctant to believe that child sexual abuse took place at all. Now we know only too well that it does. But it remains hard to protect children from it. This is because the perpetrators are so often people in authority over the victims, sometimes people whom the victims love and trust. These perpetrators have many ways, some subtle and come not so subtle of making their victims keep quiet about what they have suffered. The abuse itself is the reason why so many victims do not come forward until years after the event. This presents a challenge to a legal system which resists stale claims.”

Evidence shows a Claimant is not able to disclose their experiences for a period of 26 years from when they suffered abuse.

Therefore, the defence of limitation operates unfairly in child sexual abuse claims. It can prevent a significant proportion of claims from being pursued, which impacts the access to justice for survivors.

It is an important consideration when considering litigation and the trauma your client will be exposed to by having to give evidence at Cout explaining their reasons for being unable to come forward earlier and justify the timing of the presentation of their claim.

It is also a significant factor when valuing or settling a claim as it can be necessary to advice a Claimant to accept a reduced settlement offer rather than risk losing their case on the issue of limitation.

It is our view that the limitation period should be removed from legislation in all cases involving child sexual abuse. The recommendation of IICSA should not be ignored. Survivors gave evidence at the inquiry in good faith that their voices would be heard, and changes made to prevent other people suffering their experiences.