Press Release: Embargo Not for publication before a.m. Thursday 28 September 2000.
Law Reform Commission Consultation Paper on The Law of Limitation of Actions Arising from the Non-Sexual Abuse of Children
In recent years, revelations of child abuse in Ireland, particularly in institutions such as orphanages and industrial schools, have created a huge public outcry. The political response to the revelations encompassed a number of measures and proposals.
The first of these was the establishment of the Commission to Inquire into Child Abuse, chaired by the Hon Miss Justice Laffoy. Another was the enactment of the Statute of Limitations (Amendment) Act, 2000. This Act amended the law of limitations in order to facilitate the bringing of civil actions by victims of child sexual abuse, where such actions would fall outside the time limits imposed by the existing law.
This legislation does not, however, extend to victims of non-sexual abuse. One of the reasons given by the Minister for Justice, Equality and Law Reform for this differentiation, was that it is not clear that non-sexual child abuse affects victims in their adult years in the same manner as a victim of sexual abuse would be affected. Another was that what would have been considered reasonable corporal punishment twenty or thirty years ago would not now be considered acceptable. And there could be a risk that the standards of the present would be imposed on the past, something which would not be true of sexual abuse. It was therefore considered necessary to obtain the advice of experts in relation to the reform of the law of limitations in order to accommodate victims of non-sexual abuse.
As a result, on 25 May 1999, this matter was referred to the Law Reform Commission. By this Reference, the then Attorney General, Mr David Byrne S.C., requested the Commission to undertake research in relation to the limitation of actions (i.e. the time limit for bringing civil proceedings) arising from non-sexual abuse of children and to make such recommendations for reform as the Commission considers appropriate. This Consultation Paper is the product of the Reference. There will be a final Report later.
Scope of Reference
The Commission has been mindful of the other measures already adopted to deal with the disclosures of child abuse. However, the Attorney General's Reference and the 2000 Act, mean that the Commission is narrowly confined to considering limitation of actions for non-sexual abuse where such abuse constitutes a civil wrong under the present law. It is not part of the Commission's remit to recommend the creation of new civil wrongs or new cases of substantive civil liability in this area. Moreover, the wider areas of social or legal policy which may be relevant lie outside the remit of the Law Reform Commission.
As a general and long established part of the court system, the law of limitations imposes a time limit for bringing civil actions. It is based on the need to balance the right of the plaintiff to bring an action, the right of the defendant not to face stale and unreliable evidence or to be subject to open-ended liability and the interest of society in having claims resolved as quickly as possible. However, it is argued that, in the context of child abuse, this traditional balance between the rights of the defendant and the plaintiff, and those of society, should be altered in favour of the plaintiff.
In approaching the task of recommending a regime for these cases, the Commission has looked to the laws of other jurisdictions and to evidence of a psychiatric, psychological nature.
Provisional Conclusions of Consultation Paper
Many common-law countries have adopted separate limitations regimes for dealing with child sexual abuse but non-sexual abuse has rarely been considered as a distinct category of case for limitation purposes. Almost every jurisdiction which has considered the possibility of treating cases arising from non-sexual abuse separately concluded that a distinct limitation regime was not necessary for such cases.
- There is substantial medical opinion and literature on the psychological effects that result from child sexual abuse, but comparatively little on non-sexual abuse upon which opinions differ in any event.
- Medical experts differ as to whether victims of child non-sexual abuse are psychologically handicapped in their ability to bring legal proceedings in time, to the same extent as appears to be the case with victims of child sexual abuse.
- It does not seem appropriate that expert psychological or psychiatric evidence, which would often have to delve back many years into the past, should be the determining factor in devising a limitation regime for cases of non-sexual abuse (such evidence is the determining fact or in sexual abuse cases under the 2000 Act).
- Instead, the Law Reform Commission provisionally recommends a fixed period running from the age of majority of the victim, for bringing a civil action for child non-sexual abuse. This period may be either twelve years with ajudicial discretion to allow an additional period of three years or, simply, fifteen years.
- This approach would be designed to create certainty and clarity in the law of limitations, while accommodating the rights and interests of victims of child non sexual abuse.
- The Law Reform Commission recommends that this limitations regime should be retrospective - i.e. it should apply to cases which arose in the past, but which have not yet been settled or determined.
- The regime should apply to cases where there was a (broadly defined) relationship of trust and dependency between the victim and the perpetrator but in such cases it should also apply to instances of vicarious liability (e.g. liability of the institution or body which employed the perpetrator) and to cases in which public authorities are liable.
- Where both sexual and non-sexual abuse have been perpetrated in the same case, the limitations regime (either under our proposals or under the 2000 Act) which is most favourable to the plaintiff should apply.
- Other limitations regimes, insofar as they may be applicable to child abuse cases, such as that under the Statute of Limitations (Amendment) Act, 1991, will continue to be available to plaintiffs.
The recommendations contained in this Consultation Paper are entirely provisional in nature and are now before the public for comment. The Commission welcomes the views and contributions of persons or groups with an interest in the development of the law in this area, so that these views may be considered and incorporated in the final Report.