Monday, 4 March 2013

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.

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