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Child sex abuse inquiry

Date:24 OCT 2014
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Solicitor Advocate
An inquiry into child sexual abuse

An increasing crescendo of public concern over recent months has concentrated on child sexual abuse, such that on 7 July 2014 the Home Secretary, Mrs Theresa May, announced in the commons the setting up an inquiry to ‘address two important public concerns’. These were that in the 1980s the Home Office had failed to act on allegations of child sex abuse; and that ‘public bodies and other important institutions have failed to take seriously their duty of care towards children’. Family lawyers, with their experience of families who may be affected by child sexual abuse, will share these concerns; and perhaps look to this as an opportunity to look at child law reform and administration of children departments.

Mrs May annunciated ‘three important principles’:

  • Everything would be done to ‘allow the full investigation of child abuse and the prosecution of its perpetrators, and we will do nothing to jeopardise those aims’.
  • ‘Maximum transparency’ would be guaranteed by the government wherever possible. 
  • ‘Wherever individuals and institutions have failed to protect children from harm’ the government will expose ‘failures and learn the lessons’.

Lady Butler Sloss was appointed to chair the inquiry; but she stood down because of possible links between her brother, Lord Havers, with investigation of the allegations which might have to be investigated. On 7 September 2014 the Home Secretary appointed the present Lord Mayor of London and former President of the Law Society, Fiona Woolf and two other panel members. Further panel members and the inquiry’s terms of reference were announced on 21 October 2014. There have been concerns amongst survivors of child sexual abuse as to consultation upon, and now the narrowness of, the terms of reference. Mrs Woolf’s impartiality and expertise for chairing this inquiry have been raised.

A judicial review application has been issued by one of the survivors, raising questions as to these last points. The grounds for the judicial review application are here. This article examines briefly the administrative and child law issues involved.

Terms of reference: legitimate expectation

An announcement in the House of Commons in September 2014 by a Northern Ireland minister, Mrs Theresa Villiers, on behalf of the Home Secretary was as follows:

My Rt hon Friend informed the House on 5th September that it will be chaired by Fiona Woolf. Its terms of reference are yet to be determined but the Home Secretary will consider carefully any representations made to her concerning those.
In the event the terms of reference were published without any reference to those who might hope to be consulted (https://childsexualabuseinquiry.independent.gov.uk/terms-of-reference/). Three particular concerns as to their ambit will suffice here: the inquiry covers only England and Wales (ie Northern Ireland and Scotland – badly affected areas – seem to be out of scope); no mention is made of review of the working of Children Act 1989 and Children Act 2004; and it is not clear to what extent the inquiry is directed to hear witnesses, especially survivors.

There is no common law right to be consulted. However, can any affected person have a legitimate expectation to have their views considered? The law is not clear on the point; but certain it is that the common law is moving to recognise a right in appropriate people or their representative bodies to be consulted. Inquiries Act 2005, s 5(3) deals with terms of reference of a statutory inquiry and of ‘public interest’. This implies some dialogue with a ‘public’. In the light of the direction in which administrative law is going (see eg R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619) it might be thought that some public consultation is legitimately to be expected by those directly concerned as subjects of the inquiry – especially in the light of Mrs Villiers’s statement to the House of Commons in September 2014.

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The importance of decision-makers acting in a judicial or quasi-judicial capacity has been a cornerstone of administrative law from at least the late nineteenth century. In terms of judges such cases as Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451, [1999] EWCA Civ 3004, [2000] 1 QB 451 and Magill v Weeks (otherwise Porter v Magill) [2001] UKHL 67, [2002] 2 AC 357, [2002] 2 WLR 37 stress the point. The Court of Appeal dealt with the question only last week in Otkritie International Investment Management & Ors v Urumov [2014] EWCA Civ 1315, where Longmore LJ said:

'[1] It is a basic principle of English law that a judge should not sit to hear a case in which "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [he] was biased" (Porter v Magill [2002] 2 AC 357 para [103] per Lord Hope of Craighead) ... The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility in other words that he might in some way have "pre-judged" the case.'
The common law asserts the importance of impartiality in the context of inquiries. The law can be said to be represented by Inquiries Act 2005, s 9 (and the Home Secretary accepts that this applies to non-statutory inquires: see eg letter drafted by her officials https://childsexualabuseinquiry.independent.gov.uk/wp-content/uploads/2014/10/Letter-to-the-Home-Secretary.pdf ):

9 Requirement of impartiality
(1) The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has —
(a) a direct interest in the matters to which the inquiry relates, or
(b) a close association with an interested party,
unless, despite the person's interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
(2) Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

If a party to litigation wishes to challenge the ‘bias’ of a judge, application is made in the proceedings. How does a person interested in the appointment of an inquiry chair or panel challenge the appointment decision? In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) applicants sought review of decisions to hold a private, not public, inquiry. In each case the challenge was based on the rights to freedom of expression under Art 10 (not as here under fairness where bias may apply: European Convention 1950 Art 6(1)); and both applications were refused.

That both applications achieved a full hearing suggest that judicial review was the appropriate forum for such a challenge.

Statutory inquiry

In very broad terms, an inquiry can be under Inquiries Act 2005 or non-statutory. The 2005 Act gives defined powers to the inquiry panel, for example to take evidence on oath (s 17(2)). The powers and duties of a statutory inquiry are not so clear.

This inquiry has eight members as well as its chair. But is the Home Secretary clear as to the difference between a judicial decision-making process (which at root is the object of an inquiry) and evidence to an inquiry: experts and lay evidence. For example Inquiries Act 2005, s 11 empowers a minister to appoint assessors. It is not clear that one or two of the panel members are unengaged personally with the issues involved in the inquiry; though they might be eminently appropriate as witnesses or assessors.

The Home Secretary might think a single family law specialist High Court or Court of Appeal judge could more appropriately take on chairmanship of this inquiry.

David Burrows acts for a survivor who has issued a judicial review application in respect of the inquiry.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.