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Researching Reform: Child Abuse Inquiry – tools for building trust and revealing the truth

Date:6 MAR 2015

The nation’s Independent Panel Inquiry Into Child Sexual Abuse is undergoing a radical transformation, but will it be enough to gain trust it so desperately needs amongst the public and survivors? It could be, but the new Inquiry must heed the lessons of current investigations around the world.

The Statutory Inquiry Into Child Abuse, as it is now known, has been given a powerful makeover. Its Head, New Zealand judge Justice Lowell Goddard looks to be savvy and meticulous, and its newly bestowed statutory status will give this body a brand new set of teeth, which one hopes will bite when necessary, through the compelling of witnesses to give evidence and the production of documents to help move the inquiry along.

A new panel though, has yet to be announced. Section 4 of the Inquiries Act 2005 tells us that each member has to be appointed by a Minister, in this case Home Secretary Theresa May, and that each prospective panel member must be consulted before an appointment can be made. Section 8 of the Act also tells us that whoever is appointed must have the necessary level of expertise, but is this criterion sufficiently robust?

A statement, published on the old Inquiry website by the Inquiry’s lead counsel, Ben Emmerson QC, tells us that the search for the yet to be revealed panel embraces, “an objective appointment process conducted in accordance with transparent criteria”. This strategy alone is not enough. If the old inquiry has learned anything, surely, it is that the panel must not only be highly professional, and well received by the public, but it must also be able to work as a group and with survivors. It must also help to mobilise the inquiry, rather than stall it and let it stagnate, as it has done in the past through internal gripes and poor communication with victims of abuse. Much of this is down to good chemistry. Whoever is tasked with putting the panel together will have to implement a trilateral approach – good working chemistry between the panel, the Chair and, most importantly, our survivors. There will always be disagreements within a group; the key will be to find a panel that can work through those conflicts with dignity and a strong sense of resolution.

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The language used too, both by the panel and the Inquiry team needs to be pitch-perfect. The recent furore caused by Scotland’s own inquiry into child abuse is a cautionary tale . Survivors in Scotland have now found themselves questioning the motives behind the Scottish government’s inquiry into child abuse, after a government document for the inquiry was published. Crucially, the document attempts to make a link between human rights based protection for all those involved in the inquiry, including staff working at highlighted institutions, and the need to establish the facts in each case. The statement which caused offense referred to the desire to make the inquiry, ‘about establishing the truth rather than attributing blame’.

It is not clear exactly what the Scottish government intended to mean, though it reads rather badly. At best, the wording gives the impression that the inquiry is trying to temper unfounded allegations, and at worst, appears to be an attempt by the government to avoid what may well become rather large payouts to victims by eschewing responsibility for apparent abuse. It is now well documented that inquiries of this nature are likely to cost participating governments a great deal of money, as can be seen in a recent report released by Australia’s own Royal Commission into child sexual abuse . Needless to say, survivors in Scotland were left livid after they felt the wording was a deliberate attempt to avoid establishing blame for recognised abuses.
Given the very delicate nature of these inquiries then, thoughtful language must be a bastion in the quest for truth and trust, even though the Inquiries Act itself makes no effort whatsoever to outline expected conduct in relation to the inquiry team. Indeed, there is no specific guidance in the Act on how the inquiry should treat witnesses, at all.

There also appears to be no provision for legal representation for those survivors who, for example, may already have brought a case inside the justice system. Whilst the inquiry cannot be expected to foresee the future with absolute certainty, it would do well to consider a response to what may well be an eventuality – a survivor who refuses to participate fully with the inquiry unless they have legal representation.

This is not as far fetched as it sounds. A recent report suggests that witnesses in Ireland who are taking part in the Inquiry there, are now refusing to sign their statements unless they are given legal aid. The matter was discussed in court in relation to one survivor’s case, where she was initially denied legal support during the Historical Institutional Abuse (HIA) Inquiry by its Chair, Sir Anthony Hart. This refusal was subsequently overturned by the High Court, but Sir Hart is now challenging that decision. This turn of events has left remaining survivors anxious, and now many are refusing to sign their statements unless they are assured legal assistance. Section 17 of the Inquiries Act 2005, tells us that in the making of any decision regarding procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others). This will be the ultimate balancing test for the inquiry when considering legal aid, but it will have to bear in mind the overt inequality inherent in an inquiry which clearly has counsel at its disposal, and vulnerable witnesses coming to assist it, who may not.

There is another, very important aspect to this inquiry, any inquiry in fact, which finds itself working with survivors. This is the way in which the inquiry interacts with survivors whether through a parallel panel, if Justice Goddard goes on to establish one for victims of abuse, or via the wider channels of the media and future meetings scheduled for survivors and inquiry members. There is a growing body of evidence which suggests that those who have experienced child abuse are likely to suffer later on in life with conditions like depression and extreme anxiety, and whilst it would be prejudicial and counter-productive for any inquiry to assume that every survivor they encounter suffers in this way, the fact that survivors might respond differently to certain tones and styles of communication must be acknowledged.

The inquiry process may just be a mechanistic exercise for the panel, but for victims of child sexual abuse it will play a significant cathartic role in their recovery. Whether the panel members and Chair like it or not, they are responsible for ensuring that they do not impede that recovery or cause survivors more anxiety and pain. In an ideal world they would all be briefed by a professional on how to engage and support survivors as they collect the materials they need to carry out their tasks.

This has never been truer than for our own current inquiry, which already looks set to be dominated by legal minds and which has had communication troubles in the past. Justice Goddard is herself legally trained, and will no doubt give the inquiry a legal ‘feel’ in the way she leads and develops it. This in itself is a double edged sword – both advantageous in the attention to detail she will no doubt bring, and potentially hazardous if she, and other panel members do not adjust what can often appear to be abrasive and dismissive language in the discussions that follow with survivors. The previous panel learned to its cost the perils of poor communication, riddled as it was with in-fighting and embarrassing head to heads with survivors. The panel was dismantled after only a few months. This time around, the inquiry will need to be especially mindful of its interactions with others.

As well as a clear and compassionate communication policy, the new inquiry can bolster its relationship with the outside world by ensuring that each panel member’s professional abilities are not only documented well, but that their human, emotional abilities are too. The panel members will need to be approachable, engaging and sympathetic to the cause they have signed up for. Any documentation on them will need to highlight those traits, and not fall foul of that particular responsibility through the use of marketing gimmickry or superficial one-liners. Perhaps a quote from each panel member on the inquiry’s web site as to why they have chosen to assist the inquiry and information about who they are as people, not just professionals, could help.

Transparency too will play a large part in building trust. People do not mind if mistakes are made, as long as the inquiry takes responsibility for them and forges a way to move past errors and omissions. Telling the nation about difficulties after they have festered inside the inquiry and spilled over into the public arena is unhelpful. Keeping the nation updated on progress and explaining sources of delay so that communication remains live, will be essential in ensuring the inquiry’s success. Justice Goddard has already gone some way to making the inquiry organic, in a fashion.

During her interview with the Home Affairs Committee last month, Mrs Goddard promised to cultivate the inquiry website so that it could act as a meeting place for survivors, publishing frequent updates on the inquiry’s progress and making it more user friendly. Updates are now starting to come in, but more frequency is needed, even if the old site is considered redundant and there isn’t much to report – it would help to instill confidence in the inquiry if that conversation started now. But Mrs Goddard has plenty of scope to make this inquiry truly influential, not just tinker with tech. Section 17 of the Inquiries Act also tells us that the Chairman has a great deal of latitude, specifically, her power to direct the procedure and conduct of the inquiry, subject only to the narrow requirements of Section 41 (which also affirms her right to direct procedure and conduct). If she so chooses, Mrs Goddard can flex the inquiry’s muscles and take a great weight off the nation’s shoulders, but she will need support and guidance from every quarter. If there is one lesson we can take from current inquiries around the globe, it’s that survivors must be the raison d’etre of any investigation and that they are also the key to uncovering the truth.

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