In this episode of the HJ Talks About Abuse Podcast, we discuss the topic of remote interviewing with returning guest, Clinical Psychologist and visiting Professor at Birmingham City University Hugh Koch.

Part of the process for survivors of sexual abuse is to be interviewed. These interviews can be conducted by those trying to help them recover and rebuild their lives - such as psychiatrists or psychologists. Or, it may be by those who are trying to help them in other ways such as the police or their solicitor. In each of these interview situations, it is vitally important that the interviewee feels comfortable and able to share honest and open answers. It is also vitally important that the interviewer is able to clearly hear the person they are interviewing and, equally importantly, they need to be able to pick up on body language.

Both Hugh and I had conducted remote interviews prior to the COVID-19 lockdown, but neither of us were enthusiastic about the prospect of doing more of them, unless they were strictly required by the interviewee. 

However, since the COVID-19 lockdown, remote interviews have become the accepted norm and both of us have had to use them extensively. A variety of platforms can be used for remote interviews with each having their pros and cons, but as long as the platform is easy to access for the survivor of abuse, it should work well.

With limited cause to use the technology prior to lockdown, we were more willing to cope with limitations like poor picture or sound quality. In some cases, there was a noticeable delay between a question being asked and the answer being given when interviews were done with people in North America. There have previously been issues with assessing body language of the lower torso and legs or if those areas of the body sustained an injury. But technology has improved a lot recently and there have been far fewer problems than anticipated. Empathy and listening is good for both ends of the call.

In March, there was a big discussion between solicitors, barristers, therapists and insurance companies about the validity of remote interviews. But, since BPS guidelines have been issued, client satisfaction with the process has been high, it has been easy to access for clients, and provides a good degree of privacy, confidentiality and security.

There have been specific issues with remote psychometric testing, as the process becomes much more complex when done remotely. It’s not that it can’t be done, just that it takes much more skill and attention.

Overall, remote interviewing has been working well and it may be used more in the future, even after lockdown ends, but it will never replace the face to face interview.

In this podcast AC and MS discuss the question why would you “cover-up” allegations of child sexual abuse?

The question is asked in the wake of the publication of the Royal Commission into Institutional Responses to Child Sexual Abuse’s report in which it is revealed that it determined that Cardinal George Pell had known of clergy paedophile activity at least as early as 1982 and possibly earlier.

The findings concerning the Cardinal who was last month acquitted of charges of child sexual abuse by the Australian High Court had been redacted until Pell’s court processes had run their course to avoid prejudicing the proceedings.

The findings relate to Cardinal Pell’s conduct as a priest in the Victorian diocese of Ballarat, where numerous cases of paedophile activity by Roman Catholic clergy occurred in the 1970s and ’80s. The Commission rejected Cardinal Pell’s evidence that he had not been told that the paedophile priest Gerald Ridsdale was being moved from his parish because of child sexual-abuse complaints. The Commission said that it was “implausible” that the then Bishop of Ballarat did not tell Pell and others in a meeting the real reason for Ridsdale’s move. The failure of Pell and others to advise the Bishop in relation to Ridsdale was unacceptable, the Commission said.

What Cardinal Pell knew about Ridsdale taking boys on trips in 1973

[Gerald] Ridsdale was appointed assistant priest at Ballarat East in 1972. In January 1973, Father Pell was appointed assistant priest at Ballarat East. He lived in the Ballarat East presbytery with Ridsdale for nine or 10 months in that year.

While at Ballarat East, Father Pell heard that Ridsdale had taken groups of boys away on camps, including overnight trips. Cardinal Pell accepted that, because of the Monsignor Day scandal, child sexual abuse was at least on his radar. In submissions, he also accepted it was clear that ‘momentary thought’ was given to the matter of Ridsdale taking boys away on camping trips.

We are satisfied that in 1973 Father Pell turned his mind to the prudence of Ridsdale taking boys on overnight camps. The most likely reason for this, as Cardinal Pell acknowledged, was the possibility that if priests were one-on-one with a child then they could sexually abuse a child or at least provoke gossip about such a prospect.

By this time, child sexual abuse was on his radar, in relation to not only Monsignor Day but also Ridsdale. We are also satisfied that by 1973 Cardinal Pell was not only conscious of child sexual abuse by clergy but that he also had considered measures of avoiding situations which might provoke gossip about it.

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report

The  Royal Commission has also found that Pell failed to act on complaints about paedophile clergy in Melbourne in the late 1980s and early 1990s when he was an auxiliary bishop in Melbourne, and later when he was Archbishop.

In a statement, Cardinal Pell, who is now living in a Sydney seminary since his release from prison, said that he was “surprised by some of the views of the Royal Commission”, particularly the findings concerning Gerald Ridsdale. “These views are not supported by the evidence”.

In their examination of possible answers AC and MS discuss:

  • an institutional culture that prioritises reputation, prestige or loyalty to the institution above the individual
  • strong personal relationships between adults within institutions, or conflicts of interest for individuals in institutions
  • Culture can suppress disclosure of abuse for example out of concern that it may bring shame (real or imaginary) on to the family or community

“We urge Member States and the international community to include the specific needs and priorities of indigenous peoples in addressing the global outbreak of COVID 19." ~ Chair of the United Nations Permanent Forum on Indigenous Issues, Anne Nuorgam.

In this episode of the HJ Talks About Abuse podcast, Alan and Regina Paulose discuss the impact of coronavirus on indigenous peoples from a human rights perspective.

Indigenous peoples experience a high degree of socio-economic marginalization and are at disproportionate risk in public health emergencies, becoming even more vulnerable during this global pandemic, owing to factors such as their lack of access to effective monitoring and early-warning systems, and adequate health and social services.

As lockdowns continue in numerous countries, with no timeline in sight, Indigenous peoples who already face food insecurity, as a result of the loss of their traditional lands and territories,  confront even graver challenges in access to food. With the loss of their traditional livelihoods, which are  often  land-based, many Indigenous peoples who work in  traditional occupations and subsistence economies or in the  informal sector will be adversely affected by the pandemic.  The situation of indigenous women, who are often the main providers of food and nutrition to their families, is even graver.

Yet, Indigenous peoples are seeking their own solutions to this pandemic. They are taking action, and using traditional knowledge and practices such as voluntary isolation, and sealing off their territories, as well as preventive measures – in their own languages.

WEF: A 15-year-old boy from a remote region of the Brazilian Amazon, near the border with Venezuela, died of COVID-19 on April 9. A member of the 35,000-strong Yanomami people, the boy was the first known death among Brazil’s indigenous communities in the current pandemic. There are now growing fears that COVID-19 will wreak havoc across the Amazon

Alan and Reg question the effectiveness of the UN and ask

  1. How does the UN protect indigenous rights if at all?
  2. What role does the UN have?
  3. Are there legal obligations and rights?
  4. Who speaks for indigenous peoples?
  5. What can indigenous peoples do to protect and promote their human rights?
  6. What can we learn in the COVID 19 context from indigenous peoples?

In answering these questions they explore whether there are wider implications for mankind given the impact globally of the virus and the environment and should we wring our hands in despair, or look forward with optimism?

In this episode of the HJ Talks About Abuse Podcast, Alan Collins speaks with Clinical Psychologist and visiting professor at Birmingham City University, Hugh Koch, about the impact of lockdown on mental health.

Specifically, they discuss lockdown related anxiety. 

Hugh writes a weekly blog about lockdown related anxiety and brings some of his observations from that endeavour to this conversation. Most of us have experienced some form of lockdown related anxiety over the last 12 weeks from difficulties adjusting to new working patterns, family dynamics, loneliness and isolation. 

There are a few main ways to avoid lockdown anxiety:

  1. To control our schedules and routines to make sure that we stay connected to others
  2. To be aware of the way that we think during lockdown
  3. It's also important to have positive views of our abilities and those of our peers and the country as a whole to eventually be able to come out the other side of this crisis
  4. Finally, we need to be able to manage our feelings by focussing on the kinds of things that will help us to stay nice and calm.

Hugh also talks about the need for doing exercises that help us to focus on our breathing as well as tensing and relaxing different parts of our bodies to allow us to loosen up and let go of our anxiety.

Connecting to our main subject of abuse, Hugh answers Alan's question about how adult survivors of childhood sexual abuse should deal with anxiety as they also have to deal with their past experiences on top of lockdown related stresses.

Hugh's advice is that whatever has happened in the past is in the past and today can be the first day of the next phase. This next phase can involve being clear with yourself about what you can change starting today that will make a positive impact on you. Maybe it is going for a walk and saying hello to five people or looking at the world around you and identifying aspects that are pleasant. Even making a phone call to show an interest in someone else's life story can have a big impact. 

It's obvious that the complex issues faced by adult survivors of childhood sexual abuse cannot be solved by a few minutes on a podcast, but these strategies can be a starting point from which real healing can stem. 

People’s Tribunals are independent, peaceful, grassroots movements, created by members of civil society, to address impunity that is associated with ongoing or past atrocities. As such, they offer society an alternative history and create a space for healing and reconciliation to take place that may otherwise be stifled by political agendas and legal technicalities. Since the 1960’s, People’s Tribunals have grown and developed to address many kinds of situations, from genocide to environmental degradation.

In this episode of the HJ Talks About Abuse podcast Alan and Reg Paulose discuss the concept of the People’s Tribunal and question their effectiveness.

In the context of that question they discuss:

  • Can they be seen as legitimate responses to injustice?
  • How do they work?
  • What do they achieve that conventional legal models do not?
  • So are they effective?
  • How do we measure effectiveness, what does it look like?

Reference is made to the UKCSAPT – the People’s Tribunal established in the UK to examine child sexual abuse (see website HJ).

These issues are discussed in the recently published book: People’s Tribunals Human Rights and the Law: Searching for Justice (published by Routledge, and edited by Reg. Alan wrote the chapter on “People’s Tribunals and how they examine child sexual abuse).

This book presents a balance of academic and practitioner perspectives on People’s Tribunals. It explores key questions relating to their formation and roles and discusses what they can offer to victims and survivors. The volume provides an introduction to the subject, theoretically informed discussion reflecting different perspectives, and a range of contributions focusing on different types of People’s Tribunals and various aspects of their operation. The authors analyse the advantages and disadvantages of these movements in a variety of contexts. The impact and contribution they have in the international criminal law and international human rights context is also discussed.

In this week’s podcast Alan discusses issues of elder abuse with Prof. John Williams.

John was Professor of Law and Criminology at Aberystwyth University. His main area of research is examining how the law affects older people with a particular emphasis on human rights, social care, the criminal justice system and elder abuse. He is the author of many academic and practitioner papers on topics such as the rights of older prisoners, social care of older prisoners, the case for a public law on the protection of adults at risk, care home design and human rights, and international human rights and older people. Most recently, he authored Protection Of Older People in Wales: A Guide To The Law. This guide was published by the Older People’s Commissioner for Wales and is designed to assist practitioners working with older people at risk of abuse.

John is currently a member of the Welsh Government's advisory group on the new law on adult protection in Wales. He recently acted as legislative adviser to the Health and Social Care Committee of the National Assembly for Wales on the Social Services and Well-being (Wales) Bill. In June 2012 John was a member the Expert Group on the Human Rights of Older People that was organised by the United Nations. He is a trustee of Age UK, Age Scotland, and Ceredigion CAB, and a board member of Consumer Futures. John is a member of the Welsh Advisory Group of the Law Commission for England and Wales.

Elder abuse is a complex and emotive issue and it is difficult to discuss but we all have something in common: we were children once and we are all getting older yet our society experiences ageism.

Elder abuse encompasses not just physical assaults, but neglect and exploitation. Abuse can occur in the home, within families, and in care settings.

In this episode of the podcast, the question is asked whether further legislation is needed to promote and protect the legal rights of older people, or whether it’s a case that existing laws and policies need to be respected?

In that context, is it right that when an older person is involved, exploitation is sometimes seen as a welfare issue as opposed to a potential crime? When those with a responsibility to investigate exploitation allegations do so, is their investigation done through the prism of ageism, even if only subconsciously?

Alan and John discuss some of these issues in the context of COVID–19 pandemic and its impact on care and nursing homes. If elderly people are being confined to their rooms, or decisions are being made not to give them equal access to medical treatment (if that is the case), are their legal rights being compromised? All have the right to life under the European Convention of Human Rights, and equally a right not to be unlawfully detained or falsely imprisoned. In a recent episode of the podcast, we pointed out that you do not have to have bars on your window to be imprisoned. There is considerable scope in the “lockdown” provisions for people’s rights to freedom and life to be subconsciously or inadvertently compromised, and there are no exceptions just because you are “over 70”.

In this episode of the HJ Talks About Abuse podcast, Partner Alan Collins and Senior Associate Robert Hurling discuss personal injury trusts.

What is a personal injury trust?

An injured person sometimes places or has placed for them their compensation into a personal injury trust which is a legally binding arrangement for the holding and managing of monies – compensation received as a consequence of injury.

When and why would a personal injury trust be needed?

The injured  person may be unable to work and their family members may have given-up employment to  provide care. They will continue to have their regular living costs to meet, including providing maintenance costs for their children or other dependant relatives. All these obligations and needs could mean that the person may still need to access  DWP and local authority means-tested benefits and funding for care services. Receipt of compensation could affect entitlement.

A personal injury trust  is a legal vehicle that can be used to ensure that the receipt of compensation does not affect entitlement to certain DWP and local authority means-tested benefits.

It is important to consider whether a personal injury trust could be used to ensure that the injured person:

  • Is able to claim all of the state benefits and care funding that they may be entitled to, both now and in the future
  • has a suitable structure in place to manage their compensation in the future

A personal injury trust can, therefore, protect the interests of very young, old, disabled or otherwise vulnerable people.

How does the personal injury trust work?

The personal injury trust is created by a legal document called a deed. The injury person appoints two but no more than four trustees who will manage the fund – the compensation. They will make decisions about investment and payments. This a very responsible job and depending on the individual’s circumstances  whether family members or close friends act as a trustee together with the person receiving the compensation, or professionals are appointed such as solicitors. The trustees must each authorise all transactions within the trust, providing protection against inappropriate use of funds.

Trustees must each be over 18 years of age and mentally capable of fulfilling their responsibilities. They have to set-up a bank or building society account to hold the trust funds, which must be kept separate from all other personal finances. All cheques and transactions will be signed and authorised by the trustees. It is important to choose the right trustees, as they will have full control over the personal injury trust and the funds held within it. The trustees chosen must be able to work well together and act in the best interests of the injured  person for whom the funds are held.

It is important that the injured  person receives legal advice from a specialist solicitor about the right kind of trust to put in place. The simplest type of trust is called a ‘bare trust’ and this is often the most appropriate for personal injury funds. In this type of trust, the money still belongs to the injured person and they can end the trust at any time if they so wish.

However, other types of trust may be appropriate so the person’s specific circumstances should be considered. For example, the type of trust may affect the distribution of the injured person’s estate when they pass away, so provisions for their family in the future should be taken into account.

A personal injury trust can protect the interests of very young, old, disabled or otherwise vulnerable people

An injured person can benefit from the knowledge and experience of their trustees. Appropriate trustees can provide valuable advice and support when making important decisions. This can ensure that funds are managed appropriately to protect the injured person's long-term interests.

A personal injury trust helps to define and ‘ring-fence’ the funds that have arisen from a personal injury, keeping them separate from other assets. This can assist if a person's circumstances change and they become entitled to means-tested benefits and care services in the future.

How much does it cost to set-up a personal injury trust?

There will be a cost in setting up a personal injury trust. It should be remembered though that the trust may pay for itself several times over, and should be factored in when decided whether to go ahead.

The cost of creating a trust can sometimes be included in a compensation settlement, but often people will have to pay the costs themselves. Also, if a professional trustee, such as a specialist solicitor, is appointed to manage the fund then they will usually charge an annual fee.

When should the personal injury trust be created?

There is a 52-week disregard for payments relating to personal injury. This means that clients will have 52 weeks from the first payment of compensation (whether that is an interim payment of the final settlement) to set up a trust to receive the compensation.

Once set up, it  will ensure that the funds can be transferred into the trust immediately and there will be no loss of DWP benefits or care funding entitlement provided this is done within the 52 week limit.

Some injured people may not be entitled to means-tested benefits and services at the time they receive their funds, and so a personal injury trust may not seem immediately relevant but circumstances can change, and some thought needs to be given to what might happen in the future.

It is possible for a trust to be created at a later date but it is not retrospective and does not allow for the injured person to claim for DWP benefits that they have missed out on.

Trusts for people without mental capacity

Some injured people lack the  mental capacity to deal with their own financial affairs, under the criteria set out in the Mental Capacity Act 2005 (MCA). In order to make decisions for someone who lacks capacity, an application must be made to the Court of Protection (CoP). A CoP judge will then have to decide the most appropriate method for management of the person's financial affairs.

A deputy will usually be appointed in order to manage another’s property and financial affairs. This is usually preferred to the establishment of a personal injury trust, because a deputy is required to report to the Office of the Public Guardian (OPG). This requirement provides assurance that the person lacking capacity will have their best interests looked after. Funds held by a deputy will also be disregarded for means-tested benefits and services, in the same way as funds held in a trust.

In cases involving a child, a judge will need to approve the establishment of a personal injury trust to manage their funds until they reach 18 years of age. The court will need to be satisfied that a trust is suitable and is likely to be beneficial to the child, as well as approving the trustees and the type of trust that is to be used.

But it’s my compensation!

Yes it is, and remains so even with the establishment of a personal injury trust. An injured person (provided they have capacity) can always end the trust.

If you have any questions about setting up a personal injury trust, you can speak to Robert Hurling by visiting the Court of Protection page on the Hugh James website.

You can email aboutabuse@hjtalks.co.uk to speak to Alan about something you have heard today or to suggest a topic for a future episode of the podcast.

In this episode of the HJ Talks About Abuse podcast, Alan Collins discusses the role that institutions take in producing abusive sexualities with Dr Michael Salter. The discussion centres around the trend of people, particularly men, who are in positions of power being able to sexually abuse people within the institutions they are part of.

What is it about the institutions themselves that produces or at least encourages people to offend?

When the people within institutions lose their identity as individual people, but instead begin to be seen as numbers, they lose their voice and their power which leaves them vulnerable to abuse.

This loss of power can apply to anyone, although it is most common among children and young women.

Dr Salter gives the example of young actresses being seen as interchangeable leaving them vulnerable to sexual exploitation. They are seen as powerless and voiceless, which means that the movie executives they are reliant on have opportunities to offend that they wouldn’t have if the young women had a voice and were treated more seriously.

There can be a generational component to this kind of abuse where those who were abused or were witnesses to others being abused then grow up to be part of the same institutions. They are then more likely to either become perpetrators of abuse or to reinforce the culture of silence about the abuse that occurs as it has become the accepted norm within the institution.

In one prestigious school in Australia, a student went on to become a teacher at the school and was subsequently convicted of grooming and abuse. People who knew about the abuse remained silent because of the homophobic culture within the school and the potential consequences of word of the abuse getting out. Many top solicitors, barristers, politicians and business leaders sent their children to that school and had spent many thousands of dollars on tuition to ensure that their children had the best chances of success. These parents also contributed to the culture of silence as any whisper of a scandal might jeopardise their children’s futures.

Our institutions will continue to produce and perpetuate abuse unless we are willing to make the kinds of changes that would give children their voice back and ensure that the culture of silence ends.

Until that time, the Abuse Team at Hugh James continues to give survivors of child sexual abuse their voice back by helping them to access justice. If you would like to speak to Alan Collins about your experiences with abuse within an institutional setting, you can email aboutabuse@hjtalks.co.uk.

In this episode of the HJ Talks About Abuse podcast we will discuss what the Criminal Injuries Compensation Authority Scheme is – “CICA” Scheme and how, despite its good intentions, it is failing survivors of abuse.

The CICA Scheme is a government-funded scheme designed to compensate victims of violent crime in Great Britain. Compensation is calculated using a “tariff of injuries”, and so the size of the award varies to reflect the seriousness of the injury.

You must have reported matters to the police in order to apply; but it is free to apply to the scheme and you do not necessarily need a solicitor to complete the application for you.

The main pitfall of the scheme is the fact that survivors are refused compensation because of convictions that are unspent. This is regardless of any relevance to the abuse they suffered.

In recent weeks it has been publicised that a survivor of the well-known grooming gang scandal in Huddersfield was refused compensation because of a driving offence. (You can read about this here https://www.independent.co.uk/news/uk/home-news/huddersfield-grooming-gang-child-sex-abuse-compensation-driving-a9394736.html )

We often advise our sexually abused clients to make an application to the scheme, particularly those whose abuser is unknown, dead, or the institution involved is no longer operational.

We ensure that we advise our clients, and now advise you, to consider three important things:

  1. Your unspent convictions. A solution could be to wait and apply for the scheme when your conviction has become spent.
  2. The time limit. We have mentioned in previous podcasts the Limitation Act in relation to bringing a civil claim for sexual abuse. There is also a time limit to the CICA Scheme of 2 years from the date of the incident. However, there is discretion for the CICA to overlook this time limit if, for example, you have only recently reported matters to the police, you did not know the scheme existed, or you have some psychological reason for your delay in applying.
  3. Repaying a civil claim. You cannot be compensated twice for the same incident. So if you are bringing a civil claim against the perpetrators of the abuse, or an institution, and are compensated by them you will have to repay the CICA compensation award.

It is hoped that the CICA will adapt its strict approach to unspent convictions but we will have to wait and see.

If you are interested to learn more about the background to this podcast we direct you to our podcast from last March on Grooming Gangs.

April 24, 2020

Limitation Law Reforrm

In this episode Partner Alan Collins and Sam Barker discuss the proposed changes to the limitation laws that apply to childhood sexual abuse. 

In England and Wales, the limitation legislation states that you have three years to bring a claim for sexual abuse unless you were a child at the time of the abuse in which case you would have three years from the time you turn 18. 

Very similar laws in Scotland and Australia have now been reformed. Alan has been consulting with IICSA's investigation into limitation law in England and Wales.

While judicial thought about limitation has changed a lot in the last 30 years, there is still more reform that could be made to make the legal system more open, accessible and fair to survivors of child sexual abuse.

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