Should the British Government behave like the Irish did towards Magdalene Laundries?

The Film - Magdalene Laundries

For some reason, the Irish Government get it, when it comes to their attitude towards abuse and the protection of children, whereas the British Government don't get it in the same way. You may have noticed the recent apology from the Irish Prime Minister in relation to the Magdalene Laundries scandal. The BBC News Site stated:-

"The Irish Prime Minister (Taoiseach), Enda Kenny, has formally apologised on behalf of the state for its role in the Magdalene laundries.

Some 10,000 women and girls were made to do unpaid manual labour in laundries run by Roman Catholic nuns in Ireland between 1922 and 1996."

Would we have seen a British Prime Minister apologising in the same way? I leave you to answer that question. No doubt we would have seen multiple enquiries set up and a promise of "transparency", but not an apology.

The Irish government have also announced the setting up of a compensation scheme for the victims of the laundries. It is in its early stages but according to the BBC " victims are being urged to register with the Republic of Ireland's Department of Justice in preparation for the provision of compensation and support services"

"People may contact the Department of Justice on 01-476 8649 or by writing to: Magdalene Laundry Fund, c/o Department of Justice and Equality, Montague Court, Montague Street, Dublin 2."

Some of the background facts about Magdalene Laundries:-

• Originally termed Magdalene Asylums the first in Ireland was opened in Dublin in 1765, for Protestant girls
• First Catholic home was founded in Cork in 1809
• Envisaged as short-term refuges for 'fallen women' they became long-term institutions and penitents were required to work, mostly in laundries on the premises
• They extended to take in unmarried mothers, women with learning difficulties and girls who had been abused
• The facilities were self-supporting and the money generated by the laundries paid for them
• Between 1922 and 1996 there were 10 such laundries in the Republic of Ireland
• Many Irish institutions, such as the army, government departments, hotels and even Guinness had contracts with Magdalene laundries
• The women toiled behind locked doors unable to leave after being admitted and while the laundries were paid, they received no wages
• The congregations which ran them were the Sisters of Our Lady of Charity, the Congregation of the Sisters of Mercy, the Religious Sisters of Charity and the Sisters of the Good Shepherd

The Irish deputy Prime Minister (Tanaiste), Eamon Gilmore, said he wanted to tell the survivors that "we have heard you, we believe you, and we are profoundly sorry for what was done to you". The atmosphere in the Irish Parliament was emotional, and the survivors in the public gallery received a standing ovation - how refreshing - we can learn lessons in England from this display of emotion.

An inquiry chaired by Senator Martin McAleese found more than 2,000 women and girls were sent to the laundries by the state authorities, and many Irish institutions, such as the army and some government departments, had contracts with the laundries.

Women were forced into Magdalene laundries for a crime as minor as not paying for a train ticket, the McAleese report found.

The report also confirmed that a police officer could arrest a girl or a woman without warrant if she was being recalled to the laundry or if she had run away.

This is not the first time that the Irish government has done the right thing by the victims of abuse - in 2001 there was a similar apology by the Taoiseach in relation to abuse in Irish Institutions where widespread abuse took place for many years in the past. A list of homes was compiled, with the noticeable omission of the Magdalene Laundries. The government then set up the Irish Redress Board, which closed its doors again, after making many compensation awards in 2005

We at Abney Garsden acted for about 80 claimants to the Board who were successful in their cases. Whilst it is a shame that the Laundries were not included in the former Redress Board remit, at least the Irish Government have rectified the earlier omission.

The exact terms of the scheme have not yet been published, and are awaited with interest. It is likely to be of interest to many Irish emigrants who fled the homeland to escape not only memories of their experiences but also a lack of opportunity. The authors of the McAleese Report estimated that over 800 former residents are still alive.

Many energetic women have campaigned tirelessly. There will be, however, many others, who have never come forward, and should consider doing so.

Was William Roche right to criticise the victims of abuse?

William Roache apologises for his remarks.

If you have not seen the headlines, William Roache (Ken in Coronation Street) has been slammed for making insenstive remarks to a New Zealand TV interviewer about the victims of abuser celebrities. He more or less said that young girls are drawn to celebrities, and then complain of abuse when it all goes wrong.

He is no doubt influenced by the pending prosecution of  Michael Le Vell from Coronation Street who faces 19 charges of abusing young girls and is facing trial at Preston Court, or Stuart Hall, or indeed Andrew Lancel who played Frank Foster in Corrie

He said ""Paedophilia is absolutely horrendous. Paedophiles should be sought out, rooted out and dealt with.

But there's a fringe of people who, particularly pop singers, they have these groupies, these girls, who come, they're sexually active, sexually mature, they don't ask for their birth certificate, they don't know what age they may be.

But they're certainly not grooming them and exploiting them, but they can be caught in this trap.

These people are instantly stigmatised, some will be innocent, some will not, but until such time as it's proven there should be anonymity for both."

Roache has since apologised deeply for his remarks after the child abuse charities rightfully blasted him for his remarks which suggested that victims "brought these thing on themselves".

It is not surprising that abuse has remained a secret for so many years. It is very common. It is much easier to believe that someone whom you know and like - most paedophiles are likable, as otherwise they would not be able to get close to children - is innocent rather than guilty. Whether or not those charged are innocent or guilty, is of course a matter for the courts not the media.

Generally speaking, however the problem in the country has not been the profundity of allegations, but the suppression of allegations by those in a position of power, until the victim has the courage to speak out many years later.

We must encourage those who have been abused to speak out, not silence them with suggestions that they are to blame. Generally speaking, what causes the most damage in a victim of abuse is not the abuse itself, which indeed is manifestly harmful, but the guilt surrounding the crime, and the thought that they are to blame.

Most victims think that they must have encouraged the crime by the way they were as a child, or the way they behaved, which of course cannot be true, particularly where there is a huge age difference, and the abuser is in a position of trust.

Should there by anonymity for the abuser like the victim? I don't believe so. If the abuser's name is broadcast, it often provokes other complaints against the same person, as paedophiles rarely operate in isolation. Usually they have been caught doing something that has been repeated on many occasions in the past, but never been discovered.

As an abuse lawyer I know NAPAC personally, and agree with what they say. This comment is an insult to the victims of abuse, and should be the subject of an apology. It is welcome to hear Roache apologise for what he said, and rightfully so.

Mandatory Reporting of Abuse recommended by Inspector of Constabulary

Jimmy Savile

The recent report commissioned by Her Majesty's Inspector of Constabulary entitled "Mistakes were made" into the allegations and material concerning Jimmy Savile between 1964 and 2012 stretches to 61 pages, and makes 5 recommendations on the final page.

Mandatory Reporting of abuse is one of them -

"Recommendation 3
We consider that a system of mandatory reporting should be examined whereby those who, in the course of their professional duties, become aware of information or evidence that a child is or has been the victim of abuse should be under a legal obligation to notify their concerns to others."

The report describes how failures to action complaints by the police contributed to the failure to investigate and convict Savile in his lifetime. This is well documented elsewhere in the media, so I will skip over it for the time being.

The point is that a number of charities, including NAPAC, Innocence In Danger (whom I am working with), and the Survivor's Trust (representing over 100 survivor charities) have joined together with me to push for a change in the law. We are trying to encourage the support of parliament in a campaign.We will shortly be launching a petition.

To explain - mandatory reporting is explained above. It means that if a professional type of person (it can and has been extended to the public in some American jurisdictions) looking after children in "regulated activities" becomes aware that a child has been a victim of abuse, then he/she has a legal obligation to tell someone appropriate about it. Failure to report abuse then becomes an offence punishable in the Courts. That person could be a Local Authority officer or the Police. It matters not.

It is said in the report that:-

"there will always be instances in which the victim does not feel able to tell the police what has happened but does confide in others, such as health professionals. In addition, we recognise that, in those cases where there may be a pattern of sustained abuse, there are often behavioural changes that may alert those trained to recognise such signs. The issue then arises about what, if any, obligation should be placed on those third parties to notify others that they suspect that someone whom they know may have been the victim of sexual abuse.

...it is interesting to record that every State in the United States of America, all bar one Australian state and all bar one state in Canada have adopted some form of mandatory reporting requirements where there are allegations of child abuse or neglect."

I wrote to my MP in order to get a change in the law to introduce mandatory reporting. The official government position is set out in a letter of 27th February 2013, which I received from Damien Green MP, Minister of State for Policing and Criminal Justice. He says:-

"The Government is of the view that mandatory reporting of child abuse and neglect would not improve the robust reporting procedures already in place.....the current law, along with the local safeguarding boards and other social services that are in place are adequate"

 In other words, thank you but no thank you.

It is thus heartening that the Police agree with us that mandatory reporting should become a criminal offence in the same way as it is in all other Commonwealth Countries. In fact it is also a criminal offence in countries such as Northern Ireland, Sweden, Argentina, Denmark, Finland, Israel, Kyrgyzstan, Korea, Rwanda, Spain, and Sri Lanka. So why not England and Wales if the rest of the World think it is a good idea.

Mandatory Reporting has been a criminal offence in most states of America since the early 1960's.

In my experience of manifest abuse taking place in many institutions such as childrens homes from the 1960's to the 1980's, had it always been a criminal offence not to report, then it is much more likely that the abuse which took place would have been reported. The police would also have been able to report wardens in charge of Children's Homes, whom they knew had turned a blind eye to abuse in their children's home.

The Catholic Church who have repeatedly moved abusive priests from one parish to another could have been brought to book. It is also much more likely that Jimmy Savile would have been prosecuted in his lifetime rather than waiting until he died to carry out a retrospective dead end investigation.

Watch out for our petition launch and sign it. This law is vital to protect our children from harm.

BBC News 24 Interview on CPS guidelines

I am giving my opinion on the Keir Starmer interview tonight on BBC News 24 at 7pm

It will be a good opportunity to push the need for mandatory reporting of abuse becoming a criminal offence and our proposed petition with a view to changing the law.

Will be a good chance to also dispel the myth of trawling being something the police shouldn't do.

New CPS Abuse Guidelines from Keir Starmer are welcome

A new policy for prosecution of abuse announced

In my position as President of the Association of Child Abuse Lawyers, and a solicitor specialising for the last 19 years in abuse cases on behalf of victims, I welcome the announcement of Keir Starmer, the Director of Public Prosecutions, who has announced that the guidelines used by the Crown Prosecution Service will be overhauled because prosecutors have recently been "too cautious" in their approach to deciding whether or not to commence criminal prosecutions against child sex offenders. He has said that we must avoid another Savile situation, where decisions as to whether to prosecute during the DJ's lifetime went the wrong way.

We constantly have to advise victims who have tried to have their abuser prosecuted by the police, but, for various reasons, been unable to do so. They thus turn to the civil process in an effort to exact some justice. That is to say, they launch a compensation claim, not to enrich themselves, but so as to do something to right wrongs that were committed in the past.

Keir Starmer talked about the pendulum swinging back to the middle from an over cautious approach. Back in the mid to late 1990's abuse investigations were crude, and new to all professionals alike. That is to say, lawyers, policemen, judges, prosecutors, and psychiatrists/psychologists. It was all so shocking that it was tackled with a moral enthusiasm, that came to be criticised by the allegedly wrongfully accused.

At one time 41 out of 43 police forces had a major abuse investigation in their area. Policemen with children became tasked with responding to and investigating allegations of abuse committed many years ago in various institutions, usually children's homes. The abuse spanned 3 decades from the 60's to the late 80's. It was decided at a very early stage, that if a sex offender was abusing a boy in a children's home, it was very unlikely that it was an isolated offence, and that in all likelihood a career paedophile was at work.

The Police were of course right, in that various men were prosecuted for abusing many victims over periods of years whilst working as care workers in homes. In most homes brutality was also practised in a climate of fear, threats, and intimidation. The victims were vulnerable, and in need of care and affection - they got the wrong type of attention. Instead of being cared for they were abused. The infamous North Wales enquiry is only one of scores of other enquiries which took place.

Eventually an organisation called FACT ("Falsely Accused Care Teachers") united to mount a campaign designed to stop the prosecution of allegedly wrongfully convicted care workers. They teamed up with journalists who specialised in the subject. There was then a Panorama programme by David Rose, for which I was unfairly edited, and wrongfully implicated as an encourager of false allegations.

Closely following thereafter was a Home Office Select Committee Enquiry in 2002, into alleged false allegations. It was motivated by desire to stop the police investigations in their tracks, by discrediting the approach of "trawling" for evidence - the process whereby the police went looking for allegations by contacting as many former residents of children's homes as they could find.

One can read the select committee report on the net. They did not interview any victims, and simply took what the convicted abusers, their supporters, lawyers, and investigative journalists had to say at face value, without realising that they all had an axe to grind. By the time of the enquiry, the police had produced a manual in which the practise of trawling was discouraged, as being the reverse of normal police methods. I gave evidence. I thought the committee would be interested in my suggestions for a change in the law - far from it - they wanted to accuse me of being hand in glove with the police for personal gain, which was not only insulting to my professionalism, but also an insult to my intelligence.

The Home Office rejected the conclusions of the report, but the die was cast. Despite me meeting with the Chief Constable of Dwyfed, who produced the investigator's manual, and pleading him to change nothing, procedure did change, the allegedly falsely accused had won, and the police became "over cautious" in their approach to the investigation of abuse. Between 2002 until the Savile scandal the pendulum had swung too far away from proper investigation.

Keir Starmer is implying that the police will have another look at the process of trawling, which, of course, is a perfectly proper method of investigating a crime. If there is a sex offender on the loose, the police want to find ALL his victims whether or not they have come forward, particularly those who have been attacked and got away. If he was operating in a children's home, it would be quite natural to interview all the residents who had come into contact with him, in an effort to find corroborative evidence. As long as the process takes place properly without encouraging people to make allegations it is perfectly proper, and is not "the reverse of normal police methods"

I have to say that back in 2002, after the select committee enquiry, I feared that we would end up in this position. It is a shame that it has taken Savile to wake everyone up.

What is the solution? Make mandatory reporting of abuse a criminal offence. If there was a legal obligation on those with the care of children to report abuse which they witness, and for the failure to report to be a criminal offence, as it is in all Commonwealth Countries, and even Ruanda, then abuse in the past might have been reported rather than covered up, as it has been in the Catholic church.

I am campaigning hard for a change in the law through support groups and Parliament. Shortly there will be a petition to sign on the Internet. Sign it please.

Lord Neuberger is right to speak out about Legal Aid

Lord Neuberger in interview with the BBC

After reading the interview with Lord Neuberger, head of the Supreme Court, by the BBC News, I began to realise that the doctrine of separation of powers, which I studied many years ago in my law degree is being mildly eroded. Whilst I applaud him for complaining about the withdrawal of Legal Aid, and criticising the government, I wonder whether it is philosophically more healthy to keep the powers apart.

If one reads the interview, which was repeated on the BBC Today programme this morning, with contributions from Lord Bach, Former Legal Aid Minister and currently a Shadow Justice Minister and Sir Edward Garnier, QC former Solicitor-General, it is clear that the government have come under attack from lawyers, who do not like the way they are eroding a fundamental right of access to justice, particularly for the poor and needy, many of whom are also abuse victims, and much in need of help. Sir Edward was justifying the cuts on the basis of the economic climate, and other methods of helping people such as mediation etc.

We act for the victims of abuse, but can only help one aspect of their problems - seeking justice for the abuse they suffered years ago. We would be unable to assist them with debt, housing, CICA claims, social welfare, or any of their other myriad problems after April because the government have taken away their fundamental right to access to justice. Were it not for some very vigorous campaigning on behalf of the victims of abuse, no doubt the government would have taken away legal aid  for abuse compensation claims.

One can imagine how the media would have dealt with that one if the government had gone the wrong way - put children in care and subject them to abuse, then when they have the courage to do something about it years later, take away their rights by denying them legal aid even though they cannot afford to pay for a lawyer? Thankfully this is a fictitious rather than a real position.

When the bill went through Parliament, it was defeated 14 times in the House of Lords, who ultimately backed ministers by the narrowest of margins, with 238 votes on each side - a tie means a victory for the government. Hardly a unanimously popular bill with whole hearted support from both sides of the political divide, as sometimes happens.

The papers dealt with different aspects of the Neuberger interview. Some went for the way in which he was responding to Theresa May's criticism of judges, who allegedly were "ignoring" rules on deporting foreign criminals.He said he would not get into a "slanging" match with Mrs May.

The interview came two weeks after Mrs May accused judges of making the UK more dangerous by ignoring rules aimed at deporting more foreign criminals. She told the Mail on Sunday that they were choosing to "ignore Parliament's wishes".

"I think attacking judges is not a sensible way to proceed," Lord Neuberger said.

So how do the comments of May and Neuberger breach the separation of powers principle? Fundamentally and simply - leave governing to the government, and judging to the judges. Government should respect the decisions of judges, and not criticise them.

When government interferes with judges decisions, the ultimate result is a state run judiciary, corruption, and a dictatorship. Lawyers are silenced if they protest, which they usually do if justice is not being done. Life gets out of balance - the scales of justice are not even. When you take away legal aid, the scales tip alarmingly in the wrong direction - in favour of those with money and against those without.

Similarly, if judges criticise government, then they are usurping their function. The example given to us as law students was judicial review cases, where the courts are asked to criticise governmental decisions. Arguably these types of case are a vital form of check and balance on the wrongful exercise of powers without consultation by government. In the news recently were plans to "streamline" judicial reviews by the Ministry of Justice. Thankfully they have launched a consultation on the changes - a process which results from judicial review decisions in itself. The Law Society Gazette headline, however was, "Judicial review changes could be harmful"

I don't think Lord Neuberger was overstepping the mark by responding to criticism of the Home Secretary. He was defending his judges and the separation of powers. It was May who should not have tried to interfere with judicial decisions, and the way in which Human Rights are interpreted by the Courts. At one time, however, the Head of the Supreme Court, would never have given an interview, and would have remained silent.

At the end of the day, the government cannot complain about laws which they give to judges to interpret. Judges simply interpret what they are given. If government don't like the result of cases, then it is up to them to change the law. When laws come into force, every consequence cannot be foreseen. The law of "unintended consequences" is not uncommon.

How liable is the Catholic Church for its priests?

The Pope addresses his audience

The Supreme Court has just refused leave to appeal to the trustees of Portsmouth Roman Catholic Diocesan Trust. The Court of Appeal had allowed an appeal by a 48-year-old woman known as JGE, who cannot be named for legal reasons. She said that as a child she was beaten by a nun at a convent-run care home and later raped and sexually assaulted by a priest. The story is reported in the Guardian.

The argument surrounds something lawyers call "vicarious liablity", or, in common parlance, the legal responsibility of an employer for what an employee does whilst working for him/her.

The problem with the law, and why there have been so many appeals for years, is how one places limits on the fringes of the rule eg:-

1.  Is a volunteer, who is not paid, an employee?
2. What about a priest who is not paid by the church, but from the collection he gets every week in church.
3. Is a contractor liable for what a sub-contractor does wrong?
4. What is an employer liable for? If an employee takes a boy to his house during working hours in order avoid the prying eyes of his employer, and abuses him there, is that something which is within the scope of employment?
5. Is an illegal act, which is simply an aberrant action, and forbidden by the rules of the job, something for which an employer (or more accurately his insurers) is liable for?
6. Is someone who is not employed to look after children, but does work on premises where children are frequently present, liable?

In most of the above cases, an employer will be liable for what his/her employee does. The law has developed in this way, largely as a result of child abuse cases over the years.

The simplest explanation I have heard is from a case called Lister v Hesley Hall Limited, which said that an employer is liable, according to Salmond on Tort (a renowned Legal Textbook), if the act is:-

"an unauthorised way of carrying out an authorised activity."

The Catholic Church, through their lawyers, have been arguing that they should not be liable for what a priest does because he is called by God to his vocation, and follows the will of God in everything he does. It is said that he is detached from his bishop, and is serving his community. Thus there is no legal link, and priests are on their own.

One can see that this type of technical argument, when the priest has clearly used his position to abuse a boy or girl, perhaps even on Church premises in the robing room of the church, before or after choir practise, is not exactly appealing, though has occupied many "Appeals" in long legal argument - particularly the Court of Appeal in the JGE case above.

The news of the refusal of leave to appeal by the Supreme Court was commented upon by Cathy Perrin, who works for the Catholic Church Insurance Association, as follows:-

"This will not just affect Catholic priests. It will have impacts on commercial organisations and make local authorities responsible for the actions of foster carers."

As a foster carer myself, I can quite appreciate the arguments on vicarious liability, even though, in reality, the law (admittedly a very old decision) does not hold local authorities liable for the actions of foster carers. Of relevance is:-

1. They pay us to look after their children.
2. They put us through a rigorous vetting procedure.
3. They provide us with training.
4. They assess us every year.
5. They govern whether or not we are authorised to take any more children.
6. The provide the children whom we look after.
7. They visit us regularly to see how we are going on, and provide us with support.

The only criteria which is absent, as far as I can see, when one compares foster carers with the Catholic Church is religion. In all other respects the position is the same.

Will we see the law develope to make local authorities liable for foster parents? Against the backdrop of a cash strapped local authority, one wonders how appealing such a change in the law will be. East Cheshire Local Authority, however, organises automatic insurance for us all, just in case any claims are made. This type of arrangement, however, has not been in force for very long. Most of the cases relate to abuse which took place many years ago, at a time when there wasn't any insurance other than what the foster carers may have arranged for themselves, and only then to cover parents where their house was burned down, for example, or property damaged by foster children.

So where will it all lead? The change in the Pope, and his dramatic resignation, has brought all this to the fore once again. I don't think I can sum it up better than Keith Porteous Wood, of the National Secular Society, who said in the Guardian article:

"It is hard to exaggerate the importance of this case : it will almost certainly become an international precedent, opening the door to financial liability against the church for tens of thousands of victims of abuse, worldwide.

Evidence abounds of the shameless lengths to which the church has stooped for decades to evade financial responsibility for widespread abuse of children in its care. To have fought to evade liability for admitted abuse is both morally repugnant and a continuing blatant breach of the church's obligations under the UN convention on the rights of the child."

I wish I had the courage to be as outspoken.