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Researching Reform: Child abuse inquiry – process and prejudice

Date:12 NOV 2014
The large scale inquiry into historic child abuse in England and Wales has gotten off to a rocky start, having lost both chairs successively due to a string of concerning disclosures which tainted both Baroness Butler-Sloss and London Lord Mayor Fiona Woolf, but what kind of inquiry is it and will it be able to make a meaningful impact for those children who have suffered at the hands of paedophiles in the UK?

In June 2014, over 120 MPs wrote to the Home Secretary Theresa May, asking her to set up an investigation into the growing number of historic child abuse allegations in the United Kingdom. The following month, May announced that an Independent Panel Inquiry would be held which would “consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; and to publish a report with recommendations.”

The inquiry itself is a form of public inquiry, and under the current guidelines issued by the government, will cover England and Wales (though not Northern Ireland), and will consider matters from 1970 onwards, though there is remit to change this time line if evidence is produced during the inquiry that would suggest a rethink of the time frame. The inquiry’s age limit for child abuse victims is 18, though the inquiry will look at those over that age if the abuse started when they were minors. Allegations of child abuse uncovered during the inquiry will be passed on to the police, though Section 2 of the Inquiries Act 2005 prohibits the inquiry from determining civil or criminal liability. Nevertheless, the panel members are given some breathing space in the Act, which allows them to carry out their functions uninhibited by any likelihood of liability being inferred from determination of fact or recommendations that they may make.

When choosing a panel member, Section 8 of the Inquiries Act tells us that the Minister responsible for selecting him or her will have to have regard to that potential panel member’s expertise, and where more than one panel member is being considered (notwithstanding the inclusion of the Chairman), a balance on that panel must be sought – so that the panel is well rounded and covers the necessary areas of expertise for the context of the inquiry.

The Chairman too, is subject to regulation and it is this regulation that has caused considerable difficulty for the inquiry. Under Section 9 of the Inquiries Act 2005, we see the Requirement of Impartiality clause. This section reads:

(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.

(3) If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4) A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

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Both Baroness Butler-Sloss and Lord Mayor Fiona Woolf were found not to have met the requirement of impartiality, though interestingly not by the selecting Minister Theresa May, but by the British public, which included some robust legal minds. FormerSolicitor-GeneralVera Baird was amongst the first to raise concerns over Butler-Sloss’s impartiality, citing her connections to the establishment in the 1980’swhen her brother was Attorney General, as a concern. Butler-Sloss’s report in 2011 on child abuse within the Church of England was also highlighted – it was widely felt that she was biased in favour of the church.

Lord Mayor Fiona Woolf did not fare much better. As required by the Inquiries Act, she wrote a letter to Theresa May outlining any potential interests or associations that could affect the eligibility of her appointment. The letter was later found to have been redrafted no less than seven times by civil servants in an attempt, so it was alleged by the media, to play down her connections with Lord Brittan, who was thought to have been involved in the disappearance of a dossier in 1984, on alleged high profile paedophiles. Concerned by this development, victims and survivors of child abuse in Britain voiced their disapproval through media outlets, urging Woolf to resign. Looking to the requirements of the Inquiries Act 2005, the BBC reported that one survivor had even filed for judicial review, arguing that Woolf was not impartial, did not have the relevant expertise and would not have the time required to devote herself to the inquiry. The damage was done – Fiona Woolf resigned on 31 October, and the Inquiry found itself once again without a Chairman.

The Chairman is typically required to have a strong sense of fairness, excellent evidence gathering skills and be able to manage the rest of the panel whilst at the same time keeping the tempo of the inquiry stable. An inquiry without a Chairman is essentially in a state of limbo, and the recent news that survivors are now calling on the government to extend the inquiry’s remit to include Northern Ireland and to compel witnesses to give evidence and see those who give false statements prosecuted, has thrown the inquiry into a deeper state of flux.

Notwithstanding the awkwardness of such an important inquiry seemingly suffering from too limited a scope and muddling along without a Chairman, there are other concerns too, which are rumbling underneath the surface. The question that is being asked, other than who will replace Fiona Woolf as the new Chairman for the inquiry, is this: what good will the inquiry really do, in any event?

Public inquiries are sometimes viewed with scepticism. Panel members are scrutinised and much debate can be had over whether those chosen to work on the inquiry are really qualified to do so. Child abuse inquiries are often criticised by survivors of abuse who feel that inquiries of this nature can’t ever really make a difference without the inclusion of abuse victims on the panel, who bring with them direct experience and a deep knowledge of the problems involved. And then there are the recommendations made by the inquiry themselves. From Victoria Climbie, to Baby Peter, countless inquiries (over 70 at the last count) and investigations into child protection issues have still not had any tangible effect on reducing the abhorrent phenomenon that is child abuse.

And yet, despite these flaws, public inquiries can offer certain benefits. They can expose uncomfortable truths, and they can offer ways of ensuring that terrible tragedies are averted in the future. They can and do make a difference – but only if the victims of these crimes are given a pivotal role in the inquiry process and not treated as a statistic with a story to tell.

Impartiality is the central tenet on which every public inquiry must rest. It should also incorporate a brave and independent Chairman who can be trusted, not by the establishment in the first instance, but by the public and most importantly, those who have survived ordeals most of us have thankfully never endured. If the inquiry really wishes to make a difference, it will need to appoint a fierce new leader and allow the survivors of child sexual abuse to have a voice in the inquiry, a voice it so desperately needs –the voice of the child.

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