EWJ June 61 2025 web - Flipbook - Page 66
Limitation Period for Child
Sexual Abuse to be Lifted
by James Ellis - Barrister at St John's Buildings
A claim was brought by the children on the basis that
the defendant had failed in its obligations under s. 17
& s. 47 Children Act 1989 to protect them from harm
and had assumed responsibility due to the level of
investigation and involvement.
On 20 October 2022 the Independent Inquiry into
Child Sexual Abuse (IICSA) published its final report.
Among the many recommendations, the 15th recommendation was that the 3-year limitation period for
bringing a personal injury claim be removed for historic sexual abuse claims. This was with the caveat that
if there is a concern over whether there can be a fair
trial due to the passage of time, the burden is on
defendants to show that a fair trial is not possible.
The Supreme court, as had been the case in previous
claims against the police, found that public authorities
did not owe a duty at common law merely because
they had statutory powers or duties. This included
where they could prevent someone suffering harm.
Or, in other words, public bodies did not generally
owe a duty to confer a benefit, including the protection of harm [28]. The investigation and monitoring of
the claimants did not involve the provision of a service which the claimants could rely on to create an assumption of responsibility, nor had the local authority
taken the children into care and so assumed responsibility for their welfare [81] & [82]. They were merely
statutory functions, and so the claim failed.
The government published its response on 5
February 2025 announcing that recommendation 15
is to be acted on. A date for implementation is not yet
set, however this is likely to have wide reaching effects
for the victims of historic sexual abuse.
Personal injury claims for historic sexual abuse, and
abuse more generally, are brought in a number of
ways. Some of the more common are given a brief
overview below.
The assumption of responsibility was considered
further in HXA v Surrey CC and YXA v Wolverhampton
CC [2023] UKSC 52.
Local Authorities: Failure to Act & the Assumption
of Responsibility
Much of the recent authority involving local
authorities allegedly failing in their common law duty
of care towards children, centres on whether there has
been an assumption of responsibility.
In HXA, the claimant claimed to have suffered
physical and emotional abuse by her mother and sexual abuse by her mother’s partner and his father. Allegations of sexual abuse were made whilst in her
mother’s care, but she was not removed from the family home until 5 years later. The steps the local authority took included the initial stages of preparing an
application for a care order and carrying out a keep
safe workshop. This was found to be insufficient for
the local authority to have assumed responsibility.
The textbook Tofaris and Steel in "Negligence
Liability for Omissions and the Police" 2016 CLJ 128
has been cited in a number of authorities (including K
v Birmingham [2024] EWHC 431 (KB) and DFX & others v Coventry City Council [2021] EWHC 1382 (QB))
when expressing the four ways that public authorities,
in the same way as private individuals, may come
under a duty of care to prevent the occurrence of
harm.
These are:
l When there has been an assumption of responsibility by the public body to protect someone from that
harm;
In YXA, the claimant was put into partial s. 20 accommodation under the Children Act 1989. YXA spent 1
night per week and 1 weekend per month in local authority accommodation. When not in local authority
accommodation, YXA continued to live with family
where hewas over medicated and neglected. However,
as this occurred when not in the local authorities’ care,
there was found to be no assumption of responsibility
at the time the harm occurred.
l Where the public body has done something which
prevents another from protecting someone from that
danger;
The difficulty with pleading an assumption of
responsibility was highlighted in K v Birmingham City
Council [2024] EWHC 431 (KB). This claim concerned
the defendant’s application to strike out various parts of
a Particulars of Claim. The underlying claim concerned
a child who was accommodated by the defendant with
her mother’s consent under s.20 Children Act 1989.
When in local authority accommodation she was sexually abused by third parties over a 2.5-year period.
l Where the public body has a special level of control
over the source of the danger; and
lThe public body’s status creates an obligation to
protect someone from danger.
It is the first of those 4 options that is frequently raised
in historic abuse claims. Poole BC v GN [2019] UKSC
25 concerned a family that was targeted by neighbours, with the children being on the receiving end of
harassment and physical abuse for several years. The
steps taken by the local authority included investigating the issue and putting the children under a child
protection plan before eventually moving them to
other accommodation.
EXPERT WITNESS JOURNAL
As part of her judgment, HHJ Kelly considered much
of the relevant case law in reaching her decision to
strike out certain paragraphs that lacked specificity
and allowing amendments to others. In particular,
simply referencing s.20 without specifically including
what the assumed responsibilities were was insufficient
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