By Peter Garsden, solicitor, Abney Garsden McDonald, Cheadle Hulme.
So acute is the problem of child abuse in Ireland (Eire) that their court system cannot cope with all the cases. Thus they had to find a suitable alternative. They examined all the similar systems around the world and came up with the Redress Board which can only be described as a non-fault, quantum only, limitation waived, compensation assessment body with generous compensation scales with the added benefit of paying the legal costs of any claimant solicitors in addition to compensation.
Fortunately the Irish Government is 100% behind the right of survivors to be compensated by the very system, which abused them. Although many religious congregations ran the care institutions the government has negotiated hard to obtain a contribution to the costs of the Redress Board in the sum of £128 million from the congregations and the Catholic Church. In the past the Government very much worked in partnership with the Catholic Church to run the education and care system. It was more common than not in the past to be educated or cared for in Ireland by Nuns or priests. The political consequences of an abuse scandal are different in Ireland than in England.
The history of the care system in Ireland from about 1920 to 1970 reads a bit like a Dickens novel. The homes (called Industrial schools and Reformatories), which catered for poor and destitute children, were run by religious congregations but were inadequately funded by government. They were neglected and allowed to exist in abject poverty. Efforts were made by the congregations to raise extra funds by making the children work, selling the produce and giving them inadequate food rations. There was a complete lack of inspections, standards, and one forms the view that the institutions were simply allowed to drift aimlessly. Cruelty, neglect, abuse and inadequate education were commonplace. In 1970 the whole system was condemned (although no sexual abuse noted) in a report prepared by District Justice Eileen Kennedy. As a result a lot of the reformatories and industrial schools were closed down. It took until the late 1990’s however for the scandal to leak out into the press and television, leading eventually to an apology being given in public by the Taoiseach, Mr Bertie Ahern in May 1999. There followed the setting up of a Commission to hear evidence from any survivor who wanted to tell his or her story of abuse. The evidence is still being heard and a report is expected in about 5 years time.
The Redress Board, which is based in Dublin, will start entertaining applications on a form yet to be published accompanied by a statement from the survivor in around Autumn 2002. The rules are :-
1. One has 3 years to put in an application from date of the setting up of the board.
2. In order to obtain compensation one has to provide
(a) Proof of identity
(b) Proof that one was resident in the institution(s).
(c) Evidence of abuse while one was in the institution(s).
(d) Evidence of the injury received because of the abuse.
3. The Institution where the abuse took place must be included on the Schedule to the Redress Institutions Redress Act 2002. The list however is not exclusive and the Board will entertain applications to include new institutions on the Schedule. The key to inclusion is some involvement by the government in the running of the institution, if only by way of inspectorial responsibility. Independent privately run institutions are not included. One would in these rare cases have to proceed through the Irish courts.
4. Compensation is assessed using weighting factors and a scoring system (see below).
5. One can claim aggravated damages to a maximum of 20% of the compensation sum awarded if the circumstances justify it. To quote ” recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant” Conway v Irish National Teachers’ Organisation  2 IR 305.
6. Special Damages are payable in addition in the normal way – for example therapy costs, extra education etc. The Irish government however has set up free counselling for Irish Survivors residing in Britain through a nationwide network. Free support on any other types of need such as housing education, alcohol addiction etc is provided by a network of special Outreach workers connected to the Irish centres.
7.The survivor is encouraged to use solicitors to assist them with their application. The case is prepared in the same way as a civil claim. One is expected to obtain a psychiatric report, prepare a statement of evidence etc.
8.The board recognises that many survivors will not be satisfied simply by an award of compensation but will probably want to have their say, tell their story and “have their day in court”. I must say that this shows remarkable insight and empathy. Accordingly the survivor will need a solicitor to assist them at the hearing. It is expected that hearings for Irish survivors residing in this country will be held here at one or two centres around the country and that the board members will travel from Ireland to hear the applications. Hearings will also be held in Ireland of course.
9.In certain cases an emergency interim payment of €10,000 can be made. This provision was included because it is recognised that some applicants are so elderly and/or ill that they may not survive the full application.
10. Applications can be made by the personal representatives of a deceased survivor where appropriate proof can be found, or where the applicant dies before the award is made.
11. It is possible to appeal against an award where one disagrees with the decision made within 28 days of the making of the award.
12. In rare circumstances where an allegation of abuse is made against an individual the Board can require the abuser to attend to give evidence and deny the allegation if he/she wishes.
13. The Board will pay reasonable legal costs and disbursements to the survivor’s solicitor in addition to the award. These will be taxed by the High Court in Ireland in default of agreement. One presumes that disbursements will be paid as and when they are incurred, but this has not been confirmed. Reports of course are not cheap
|Constitutive elements of redress||Severity of abuse||Severity of injury resulting from abuse|
|Medically verified physical/psychiatric illness||Psycho-social sequelae||Loss of opportunity|
These tables are included in a document entitled “Towards Redress and Recovery” which was published by a committee led by Sean Ryan QC and was used by the government to produce the enabling statute. To find the documents which will assist you go to a special section of our firms website dedicated to it www.irishsurvivors.org.uk
One can see that within each section there is scope for argument as to how high or low in the scale is appropriate. This is where solicitors will negotiate with the board. Assistance is given on examples of cases that fit into the severity of abuse section in another table.
|TYPE OF ABUSE||EXAMPLES|
|SEXUAL ABUSE||Violent anal or vaginal penetration.
Victim made to masturbate member of staff or perform oral-genital acts.
Sexual kissing; indecent touching of private parts over clothing.
|PHYSICAL ABUSE||Serious injuries requiring hospitalisation; profound deafness caused by blows to ears.
Severe beating causing e.g. a fractured limb or leaving permanent scars.
Corporal punishment more severe than was legally sanctioned at the time, but leaving no permanent physical signs;
Gross over-work involving inadequate rest, recreation and sleep.
|EMOTIONAL ABUSE||Depersonalisation e.g. through family ties being severed without justification or through deprivation of affection.
General climate of fear and apprehension.
Stigmatisation by staff, e.g. through repeated racist remarks or hurtful references to parents
|NEGLECT||Severe malnutrition; failure to protect child against abusive placements; inadequate guarding against dangerous equipment in work-place.
Failure to provide legally prescribed minimum of school instruction; lack of appropriate vocational training and training in life skills.
Inadequate clothing, bedding or heating.
Help is also given of examples of types of mental and physical damage caused in the following table
|NATURE OF INJURY||EXAMPLES OF PARTICULAR FACTORS TO BE TAKEN INTO ACCOUNT|
|PHYSICAL OR PSYCHIATRIC ILLNESS|
|1. Physical injury||1. Loss of sight or hearing.
Loss of or damage to teeth.
|2. Physical illness||2.Sexually transmitted diseases.
|3. Psychiatric illness||3.Severe depression with suicide attempts.
Post-traumatic stress disorder.
|1.Emotional disorder||1.Inability to show affection or trust.
Low self-esteem; persistent feelings of shame or guilt. Recurrent nightmares or flashbacks.
|2.Cognitive impairment/educational retardation||2.Literacy level well below capability.
Impoverished thought processes.
Limited vocabulary leading to communication difficulties.
|3.Psychosocial Maladjustment||3.Marital difficulties involving sexual dysfunction.
Low frustration tolerance.
Shyness and withdrawal from mixing with people.
|4.Anti-social behaviour||4.Substance abuse.
|LOSS OF OPPORTUNITY||Working below employment capacity, e.g. through having to refuse employment opportunity/ promotion because of illiteracy.
Need to concoct a false identity and to live a lie with workmates.
Unable to pursue certain occupations, e.g. police, because of “record”.
Assuming that one has satisfied the Board with proof of one’s identity, that one was at the institution in question and was abused, the Board then go on to award points using the weighting scale above. They then total the points and apply them to the following table.
|REDRESS BAND||TOTAL WEIGHTING FOR SEVERITY OF ABUSE AND INJURY/EFFECTS OF ABUSE||AWARD PAYABLE BY WAY OF REDRESS|
|V||70 OR MORE||€200,000 – €300,000|
|IV||55 – 69||€150,000 – €200,000|
|III||40 – 54||€100,000 – €150,000|
|II||25 – 39||€50,000 – €100,000|
|I||LESS THAN 25||Up to €50,000|
One can see that the scales simply have numbers in contrast to our scales which have pejorative descriptions such as “severe” There is argument as to where the case should be within a scale. There is thus endless room for argument and adjustment at every stage.
The scales reflect the higher awards of damages in Ireland, which tends to follow the American rather than the British system. To convert to Pounds sterling divide by 0.6. The figures are far higher than the equivalent JSB guideline scales. One can read comparisons of various different systems and legal precedents in the Appendix to “Towards Redress and Recovery”
In addition to the above scales the board will consider argument as to aggravated damages and medical expenses.
There are allegedly between 6 and 12 thousand claimants from Irish Institutions resident in the United Kingdom. There are many others living in other countries. Generally they fled Ireland because of the abuse as soon as they were able. Most of the survivors have already got Irish solicitors. One view held is that the survivors should have English solicitors.
Not much can be done until the Redress Board is formally set up. At Abney Garsden McDonald we have set up a special section of our website devoted exclusively to the Irish cases. As referred to above it can be accessed at www.irishsurvivors.org.uk. It contains a guide, frequently asked questions, links to all the useful documents you need, news stories, and links to other relevant sites. I have already been liasing with the Irish community and attended a meeting of MP’s in Parliament. We are hoping to act as the English co-ordinating solicitors and to allocate new cases on behalf of ACAL. We have already set up a free phone help line for claimants. What develops remains to be seen.
The compensation system, which has been set up, is the most advanced and effective arrangement for the assessment of any type of compensation in the world. Considering that the Irish have only been dealing with the problem for 3 years they have made tremendous progress. In England we should be ashamed and emulate the Irish system. I have already sent the information to Counsel whom we are using and urged them to use it to assess quantum in our own cases. We have already established a similar banding of scales of damages, which we can substitute for the Irish figures.
If the English government showed just some of the uniformity of approach and care of the Irish government, and spent more time reforming our antiquated system rather than wasting money on investigating alleged false allegations of abuse, then some of our victims would stand a chance of obtaining the justice they deserve.