This note carries a warning. I am not a lawyer, and it is possible that there are good reasons why the idea I am putting forward is nonsense. But if the solution I propose is nonsense, are there better ways of solving the problem?
Reasons for Action
When people who have used social work and social care services seek to obtain redress for what they see as negligence, they look for one or more of a number of responses to their grievances.
They may simply seek an explanation of the services provided, to be reassured that everything was done properly and to be told if there were shortfalls. Such people may not wish to take court action, but it may only be by initiating the process that they obtain proper scrutiny of their records by lawyers and expert witnesses. Simply having sight of their records may be insufficient to obtain the understanding necessary to interpret what happened to them.
They may look for an apology, either from the agency or agencies involved or perhaps from the individual social workers or other professionals who cared for them. Such people may not seek monetary compensation, but may want to be reassured that they themselves had not caused the difficulties they had suffered through the acknowledgement by the agencies and professionals that they had been to blame.
In a few cases people may seek some form of retribution, such as disciplinary action against individual staff members who they feel wronged them and should no longer be practising. Or again, they may want the police to take action against people who had abused them.
The commonest goal is to obtain compensation. While no doubt the money is welcomed and can provide opportunities not otherwise available to the claimants, the payments are usually not large, but they symbolically represent public acknowledgement by society of the defendants’ negligence and possibly victory for the claimants over those they feel have wronged them. This may go some way to obtaining closure, drawing a line under the recollections of childhood suffering.
Whether court action is a successful means of achieving the above objectives depends on a number of factors. In particular, the successful identification of negligence depends upon the availability of evidence. If inadequate records were kept or if records have been destroyed or lost it may be impossible to proceed. The defendant will properly argue that the evidence is not there for a case to be made out against them, and that it would not be just for the action to proceed. The available evidence is limited to the personal recollections of the claimant based on memories from childhood and witness statements of any surviving professionals involved in the case, and such memories are often shaky.
Similarly, many survivors of abuse only disclose what they have suffered many years later, perhaps when they feel able to talk about such things or because a trigger has reminded them of what they had gone through. This means that their abusers may be dead or infirm, ill or suffering dementia. In such cases, it is sometimes decided not to prosecute them, and the survivor is denied the opportunity to give evidence.
While it may unjust to the defendant if the action proceeds in such circumstances, it is equally unjust to the claimants if they are unable to state in court what they suffered, especially if this is because of the defendant’s failure to keep their records safe. They may be suffering twice over – from the negligence and from the failure of the justice system.
A Partial Solution?
The situation may be resolved if there is a legally constituted public inquiry where survivors of abuse can give evidence, but with the growing number of survivors disclosing abuse in the wake of Jimmy Saville it will become quite impossible to contemplate an inquiry which will encompass them all.
Clearly the legal system as it stands is unable to meet the needs of survivors in such circumstances. The question is whether it would be possible – and helpful – for survivors to be able to make sworn statements – affidavits? – stating their grievances and explaining what happened. If so, such statements could become public documents, open to challenge if the potential defendant or another party were to feel that there were inaccuracies. Indeed, the person making the statement could be liable to accusations of perjury or libel, depending upon the nature of the inaccuracies. Making such sworn statements would therefore not be taken lightly and care would need to be taken in their wording.
However, this process would give the survivors the opportunity to make matters public. In relation to the aims listed above, the analysis of the evidence available might help people to obtain an understanding of what had happened to them. It could encourage agencies or individuals to apologise, particularly if there were no monetary consequences. Those named in such statements, whether individuals or agencies, could endorse or challenge the statements, make their own sworn statements, issue apologies or simply ignore the process.
There would be the satisfaction for the survivors of having had their ‘day in court’ with the acknowledgement that their statement had been written into the public record.