The issue of consent in child abuse cases

I have summarised a court report of a case from Manchester County Court, which was kindly given to me by Richard Scorer, solicitor at Slater Gordon. Richard is a well known authority on claims against the Catholic Church and child abuse claims in general. Together we wrote the leading textbook in this area, together with Elizabeth Ann Gumbel QC and Justin Levinson, who appeared as counsel for the Claimant in this case. 

Whilst the judgment was given in open court, some details have been changed to protect the identity of the Claimant.

JL V ARCHBISHOP X AND THE SCOUT ASSOCIATION 27th May 2015 Manchester County Court Unreported

FACTS:-

The Claimant was born in 1967. He claimed damages for sexual abuse suffered between 1984 and 1999 at the hands of a Roman Catholic priest. The priest was ordained in the First Defendant’s diocese and worked as a scout chaplain to the local Scout Group. He brought a claim in trespass against the Defendants for trespass to the person on the basis that they were vicariously liable for the priest's actions.

JUDGMENT:-

His Honour Judge Platts said that he had to address the following issues:-

Whether he should exercise his discretion to allow the claim to proceed under section 33 of the Limitation Act 1980

The nature and extent of the relations between the Claimant and the priest

Whether the Claimant consented to sexual activity with the priest

Whether either or both Defendants were vicariously liable for any assault committed by the priest

What effect the abuse had on the Claimant

Damages

Platts J reminded himself of the judgment in B v Nugent Care Society [2009] EWCA Civ 827 in which the court said that a judge should determine issues of liability, causation and quantum before determining limitation. He went over the Claimant’s background. He came from a family where there were abusive and dysfunctional dynamics. He met the priest at the age of 8 when he joined the cubs in the local Scout Group. The priest was the chaplain to that group. Up until the age of 13, the Claimant’s relationship with the priest appeared to be positive. There was no abuse, but at around the time he reached his 13thbirthday, he was invited with other boys to go to the priest's house where they would smoke and drink. The priest would encourage the boys to bare their bottoms for his camera. The Claimant did not participate. At the age of 16 ½ he began to visit the priest on his own and do work for him. There was an incident when the priest touched his penis on summer camp, which Platts J found had occurred on the balance of probabilities.

There were then a series of episodes where the priest sexually abused the Claimant at his home. These continued until the Claimant went to University at the age of 18. During his time there, there were one or two incidents of sexual contact between him and the priest. The Claimant then qualified as a solicitor and began a successful career. He continued to stay occasionally with the priest over the years, who officiated at his wedding. In 1995 the Claimant left the law and began a business. This folded after six months.

The Claimant then resumed contact with the priest and further sexual activity took place.  His private and professional life deteriorated and during this time, he continued his sexual contact with the priest. This ceased in 1999 when the priest was arrested as a result of allegations brought by another young man. The Claimant then gave a series of statements to the police. In 2000 the priest pleaded guilty to eight counts of sexual abuse, five to lie on file.

The Claimant began a new business in 2000, which prospered for the first three years. He took up a new career for a year, and he stopped drinking between 2003 and 2007. His business continued albeit not as successfully. In 2007 he began drinking again and he started a new business, which was not successful. He went into rehabilitation in 2009, which was successful and his life became more stable.

Platts J considered the Claimant’s evidence. Whilst he was obviously an articulate and intelligent man, it soon became apparent on cross examination that some of the accounts that he had given were not accurate and that he had known that they were not accurate when he gave them. For instance he had told counsellors at the rehabilitation centre that the abuse had started at 13 when it had started when he was over 16 and nearly 17.

Platts J considered the issue of limitation. He referred to section 33 of the Limitation Act 1980 and the case of A v Hoare [2008] UKHL 6. A letter of claim had been sent on the 4th August 2011 and proceedings issued on the 29thNovember 2011. Platts J also referred to the following cases:-

·         Cain v Francis [2008] EWCA Civ 1451
·         B v Nugent Care Society [2009] EWCA Civ 827

In relation to section 33(3)(a), the Claimant’s reasons for delay, the Claimant had said in evidence that he only realised that he had been abused in 1999 when the priest was arrested. He also said that if was only after he had completed his rehabilitation at 2010 that he felt that he was able to confront the issues properly and seek advice from a solicitor and seek compensation. Platts J found that the delay between 1988 (when he was 21) and 1999 was both plausible and reasonable.

The period after 1999 was a little more difficult, but Platts J would accept the Claimant’s evidence that it was only after rehabilitation that the Claimant realised the effects of the abuse on him. There was a delay of two years following the end of rehabilitation and the issue of proceedings (two years) but Platts J did not think this period of great significance.

In relation to section 33(3)(b) the effect of the delay on the evidence, the priest had died in 2014 before a full witness statement could be taken from him. The Defendants said that his evidence was critical to the issue of whether the Claimant “consented” to the sexual contact, his pleas of guilty in the criminal court and the issue of vicarious liability. Some other witnesses from the material times were available but others were not.

Platts J said that the remaining sub paragraphs in section 33(3) added little to the process. The arguments from both sides were finely balanced. The reasons for the delay were entirely understandable, but the effect of the delay on the cogency of the evidence was clear. On balance, Platts J would disapply limitation.  

Platts J then considered the issue of consent. The Sexual Offences Act 1956 provided that a boy under the age of sixteen could not in law give any consent which would prevent an act being an assault for the purposes of this section. Platts J said that this was not a defence which the priest pursued in the criminal court. Therefore he effectively admitted that the Claimant did not consent. He then considered section 11 of the Civil Evidence Act 1968 and the case ofHunter v Chief Constable of the West Midlands Police and Others [1982] 0AC 529 in which the court said that section 11 of that Act made the conviction prima facie evidence that the person convicted did commit the offence.

However the Defendant could prove the contrary. There was no authority of what constituted consent in a sexual assault civil claim. It was accepted by the parties that the age limit of 16 was irrelevant in a sexual assault case. The Claimant had capacity to consent. There were authorities from other contexts.

·    R v Kirk [2008] EWCA Crim 434
·   Local Authority X v MM (by her litigation friend, the Official Solicitor) KM [2007] EWHC 2003 (Fam)
·   X City Council v MB, NB and MAB (by his litigation friend, the Official Solicitor) [2006] EWHC 168 (Fam)
·    Chattereton v Gerson (1980) 1 QB 432

Platts J made the following findings:-

·  The Claimant was between the ages of 8 and at least 16, an emotionally vulnerable boy, who was drawn to the priest because of his position in the Church and the Scouts

·  The first allegation of sexual abuse (which took place on summer camp had not been pleaded in the Claimant’s claim, but Platts J said that it indicated the way in which the Claimant’s relationship with the priest was developing into something sexual.There was a pattern of sexual contact which continued up until the Claimant was 31 years of age.

Platts J said that this was not an “all or nothing case”. A relationship which was consensual could become abusive and (although this was less common) vice versa. In his view, the relationship in this case had been abusive from 16 up to the time the Claimant went to University. After that time, he was able to make his own choices. The period of the assaults would therefore be between 1984 and 1987.

Platts J then turned to the issue of vicarious liability. He referred to the following cases which set out the two Stage test to be applied:-

·  Catholic Welfare Society v Various Claimants [2012] UKSC 56
·   E v English Province of Our Lady of Charity [2012] EWCA Civ 938

Stage 1 – was the relationship between Claimants and Defendants one that was capable of giving rise to vicarious liability?

Stage 2 – was there a sufficiently close connection linking the relationship of the priest and the Defendants and his act or omission?

The relationship between the church and the priest was sufficiently close for the purposes of Stage 1 of the tests set out in those cases. In relation to the Scouts, there was no link between the church and the Scouts save for that of the priest himself. Platts J said that the role of chaplain to the Scouts was clearly important, and he was suspended by the Scouts when his arrest came to light. The first stage was satisfied.

In relation to Stage 2, Platts J referred to:-

·  Lister and Others v Hesley Hall Limited [2001] UKHL 22
·  Maga v Archbishop of Birmingham [2010] EWCA Civ 256

The sexual assaults all took place away from Scout camps and premises, but during a time when the priest was chaplain to the Scouts. They had taken place at the priest's home and his presbytery  at a time, when he was trying to integrate the Claimant into the church. Platts J said that looking at the overall picture, Stage 2 was satisfied as far as the church and the Scouts were concerned.

Platts J then considered the issue of causation. Three psychiatrists had been instructed by the parties, and had produced a joint statement. All agreed on the following:-

· The Claimant had an Alcohol Use Disorder which had been in remission since 2009.   Prior to 199 he had symptoms suggestive of maladaptive personality traits in the context of his excessive drinking. Causation of his psychological difficulties was multi factorial involving both genetic and environmental factors, including a history of alcohol related problems in his family as well as abusive and dysfunctional family dynamics.The sexual assaults represented a betrayal of trust and were potentially psychological harmful

The Claimant’s case was that it was only after 1999 that the harm was caused by his realisation that the priest had probably manipulated him. The Defendants’ psychiatrists said that the Claimant’s problems were attributable to his family background and his alcohol abuse. Platts J accepted that the arrest and subsequent conviction of the priest in 1999 caused considerable emotional upset for the Claimant.

​However there appeared to have been a period of stability in his life between 2003 and 2006 when he gave up drinking. He could not accept that the abuse was a significant factor in his relapse into drinking in 2007. Platts J would prefer the evidence of the psychiatrists for the Defendants to those of the Claimant. One of the Defendants' psychiatrists had said that personality was fully formed at the age of 16. Platts J would accept her evidence.

Platts J then turned to the issue of damages. He was not persuaded that the abuse had had the significant impact on the Claimant’s life or business that he claimed. He would reject the claims for past and future loss of earnings and the costs of rehabilitation treatment. Platts J would award £20,000 for pain, suffering and loss of amenity. The issue of contribution between the Defendants would be deferred until after the judgment was handed down. 

Commentary - whilst the Claimant in this case did not succeed on all of his case, nonetheless he managed to overcome the limitation barrier after some considerable delay following the conviction of his abuser, and he obtained a finding that both the church and the Scouts Association were vicariously liable for his abuser's torts. Claims for loss of earnings in child abuse compensation claims can be very difficult to recover. As for the issue of "consent" it is not unknown for Defendants to raise that issue in child abuse cases. In the absence of clear authority on the point, the judge had to do his best and I think he opted for a common sense approach to a very difficult question. Nonetheless it is well known that abuse often stretches well past childhood into adulthood, particularly where the abuser has a "hold" over their victim.