Time limits for sexual abuse cases extended by Vatican.
It may not be civil law and it may be a late development but it is a welcomed development to see that under canon law the time period otherwise known as the statute of limitation has been extended.
The period for such investigations has been extended to 20 years from the victim’s 20th birthday.
It surely prompts the question as to why the period has not been extended in civil law in Ireland.
It will be interesting to see if any meaningful debate on the topic takes place
Paul Tracey
Latest Case Law relating to Child Abuse from the UK
As a member of ACAL a specialist personal injury group for solicitors acting in the area of child abuse we regularily get updates on developments in the area of UK case law. Some of these cases can be of assistance in dealing with similar Irish cases. A series of these decisions are set out for the information of the readers.
Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
Paul Tracey Solicitor is a member of ACALNewsletter July 2010
The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed 13 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, a mentoring service for members, access to databases and an information exchange to members to assist them in their work. ACALs membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field.
Latest Case Law
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Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being
seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
pwt@traceysolicitors.ie
Residential Institutions Redress Board -Late Applications update.
Time periods for Applications to the Residential Institutions Redess Board
The Residential Institutions Redress Board was set up to provide redress for victims of residential abuse in Ireland. The scheme accepted application between 202 and 2005. Following the closure date we have received a large number of enquiries in relation to ‘late applications’.
We have set out an outline of the rules govering application including late applications which we hope is of asistance.
Section 8 of the Residential Institutions Redress Act, 2002, sets out the limitation period within which applications for Redress must be made, and is in the following terms:
S 8 (1) An applicant shall make an application to the Board within 3 years of the establishment day.
(2) The Board may, at its discretion and where it considers there are exceptional circumstance, extend the period referred to in the sub-section (1).
(3) The Board shall extend the period referred to in subsection (1) where it is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made and the applicant concerned makes an application to the Board within 3 years of the cessation of that disability.
By Order of the Minister for Education and Science made on the 16th day of December 2002, the 16th day of December 2002 was appointed as the establishment day for the purposes of the 2002 Act.
In accordance with the above provisions applications for Redress were required to be received by the Board on or before the 15th day of December 2005, but the Board can in the above limited circumstances, extend the period.
Late Applications
In order to enable the Board to consider whether or not to extend the period a full and detailed Affidavit will be required setting out the facts relied upon by the applicant which might enable the Board to extend the period under sub-section (2) or (3) of Section 8 of the Act.
Please note that the Affidavit must state the date upon which the Applicant first consulted a Solicitor in relation to the application.
If you have legal submissions as regards the issues relating to the application for an extension of time within which to make the application for redress, these should be made in the letter accompanying the above mentioned affidavit, and not in the affidavit itself.
Please also state whether you are relying upon the provisions of Section 8(2), or Section 8(3), or Section 8(2) and Section 8(3) of the Residential Institution Redress Act 2002 for the purposes of the application for the extension of time sought.
In dealing with ‘late applications there are a number of questions regularly asked by the Redress Board regarding late applications.
1. When did you first learn of the existence of the Residential Institutions Redress Board?
2. Who advised you of the existence of the Residential Institutions Redress Board?
3. When did you become aware that you were entitled to file an Application with the Residential Institutions Redress Board?
4. The Redress Board carried out an extensive advertising campaign in Ireland during the period December 2002 to December 2005.
The Redress Board regularily emphasises the extend it went to to advise of the scheme and it’s operation.
It regularily states that ‘advertisements were placed in all National Broadsheet and Tabloid Newspapers as well as in the main Provincial Newspapers.
Advertisements were placed on RTE 1 Television, Network 2, Sky 1, Sky News, TV3 and TV4.
The Redress Board also placed advertisements on all National and Major Local Radio Stations.
The Redress Board placed advertisements in all Irish Daily Newspapers highlighting each Ministerial Order which added to the Institutions listed in the Schedule of the Residential Institutions Redress Act 2002.
It also placed advertisements in the main Irish Newspapers advising Applicants of the closing date for receipt of Applications being the 15th December 2005.
Enquiries are regularily made as to whether whether or not applicants saw and/or heard any of the extensive advertising campaign carried out by the Board referred to above.
The Board also asks late applicants to explain why they were not in a position to file an application with the Board on or before the closing date namely the 15th December 2005.
If you would like further information on late applications please feel free to contact our offices for further information.
Paul Tracey Solicitor
Paul W Tracey Solicitors
24 Marlborough Street
Dublin 1
phone 00 353 1 8745656
fax 00 353 18745550
e-mail law@traceysolicitors.ie
or check our our dedicated web site
Magdalene Laundries Survivors –Whereto on the issue of Redress?
Magdalene Laundries Survivors –Whereto on the issue of Redress?
In the wake of the recent reports published in Ireland regarding the abuse of children and the role of the church in handling of cases of abuse focus has now returned to those victims who have received no compensation.
I speak of course of those women who spent time in what were called the Magdalene Laundries. These homes were institutions for ‘fallen women’ who gave birth to children out of wedlock.
It is both ironic and unjust that the stories of these women which led in part to the establishment of the Residential Institutions Redress Scheme did not compensate the victims of abuse in the Magdalene laundries.
Despite pressure on the government in September of this year the minister for education stated ‘that women who had been in these homes would not be eligible for compensation from the redress board because the homes were privately owned and not operated by the state.’
This month several pressure groups met with the Clergy and asked that the Catholic Church provide financial compensation to survivors of the Magdalene Laundries who suffered abuse.
Following the meeting with Church leaders in Maynooth it was stated that the bishops would meet with the leaders of the religious congregations to discuss redress.
It remains to be seen what results these meetings produce.
From a legal perspective the issue of the statute of limitations will need to be addressed as a number of recent High Court decisions have indicated unwillingness on the part of the courts to entertain cases where the matters complained of have occurred several decades ago.
It is remarkable that the obstacle that the Statute of Limitations presents to such victims has been addressed by neither the Church nor state in any of their comments following the publication of the Ryan and Murphy Reports.
It would be a true sign of good will towards ‘victims’ if the religious congregations indicated a willingness to meet these cases and agreed to waive the issue of the statute in proceedings arising from this sad era in Irish History.
Paul Tracey Solicitors of 24 Marlborough Street Dublin 1 have dealt with over 500 Redress Board cases and will be providing updates on developments in this area of law.
If you wish to be updated in this regard please feel free to contact our offices by e mail at law@traceysolicitors.ie.
Paul Tracey
11/12/2009
