Monday 8 December 2014

Child sex abuse inquiry Terms of Reference

I thought it might be worthwhile to have a look at the Terms of Reference of the Child Sex Abuse Inquiry and see what it actually says.

It starts with a paragraph titled "Purpose", as follows.
To consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; and to publish a report with recommendations.

I'm concerned about the term "duty of care". Are we talking of a legal duty here, or a moral one? If a legal duty, then does this mean the inquiry should not comment on cases where the absence of a legal duty meant (for instance) that abuse went unreported? Does it mean that the inquiry should not make recommendations regarding changes in the law? Inclusion of the phrase makes these things very unclear.

I would remove "in their duty of care" from the first part of the sentence. It stands perfectly well without it, and is in fact clearer as a result. "To consider the extent to which State and non-State institutions have failed to protect children from sexual abuse and exploitation".

It is unfortunate that only sexual abuse is being considered. Other forms of abuse often also accompany sexual abuse, and we have found (for instance in the case of the death of Daniel Pelka) that institutions can thoroughly fail to detect and respond to cases of abuses of other kinds. It seems to me that the institutional responses necessary to detect and act on evidence of abuse are much the same irrespective of the kinds of abuse involved. If we are having trouble tackling sexual abuse, I suspect the issues of neglect might be even worse.

If we want to address the limitation to only sexual abuse, then we could alter the first part of the sentence further, as follows: "To consider the extent to which State and non-State institutions have failed to protect children from abuse and exploitation".

The first paragraph is actually the primary part of it. Everything else looks to be supplementary descriptive material on how the inquiry will go about its business.

After the initial paragraph of the purpose is the phrase "In doing so to:" and then a list of bullet points. Let's go through them one by one.
  • consider all the information which is available from the various published and unpublished reviews, court cases, investigations etc. (hereinafter “the reports”) which have so far concluded;
They have a lot of paper to look through. There's a long history here.
  • consider whether such institutions failed to identify such abuse and/or whether there was otherwise an inappropriate institutional response to allegations of child abuse and/or whether there were ineffective child protection procedures in place;
This is very important and very good. This doesn't just deal with active cover-ups (though it certainly includes them) but also addresses cases where through lack of training and awareness or just because of plain disbelief, available evidence was either not recognised for what it was or not properly acted on.
  • advise on any further action needed to address any institutional gaps or failings within our current child protection systems on the basis of the findings and lessons learnt from these reports;
Oh dear. In context, the previous bullet doesn't now look nearly so good. They are only to advise on action needed in the context of "the reports". This is the only source of information that has been mentioned. Very specifically, the terms of reference make no mention at all of the inquiry being permitted to seek out any other sources of information, such as testimony from survivors of abuse. It very much looks as if this is a "paper-only" inquiry, and given the single source of information listed this is in fact a "review of reviews". The inquiry is not going to get anywhere at all with such a narrow remit. It is also going to be a sore disappointment to the survivors if the inquiry does in fact stick to its terms of reference and exclude survivor testimony. This is not the "once in a lifetime opportunity" (to use Theresa May's words) to get to the bottom of this problem.
  • disclose, where appropriate and in line with security and data protection protocols, any documents which were considered as part of the inquiry; and
Notice again that we are talking only of documents, not of testimony or any other forms of evidence.
  • publish a report with recommendations.
Repeats the first sentence of the Terms of Reference. The document has clearly not been drafted by the Home Office but rather by the Department of Redundancy Department.

Then we come to the Scope, The first part of the scope is an illustrative (but not exhaustive) list of "State and non-State institutions" the inquiry may wish to look into.

  • Government departments, Parliament and Ministers;
  • Police, prosecuting authorities, schools including private and state-funded boarding and day schools, Local Authorities including care homes and children’s services, health services, prisons/secure estates;
  • Churches and other religious denominations and organisations;
  • Political Parties;
  • The Armed Services.
That's not bad, that's a fairly comprehensive list, and it is clear from the context that the inquiry can look elsewhere as well if it wants.

The next item in the scope is as follows:
The Inquiry Panel will cover England and Wales. Should the Inquiry Panel identify any material relating to the devolved administrations, it will be passed to the relevant authorities;
This I know has already caused concerns. There are major scandals in Scotland (e.g. Fort Augustus Abbey) and Northern Ireland (e.g. Kincora) which are therefore excluded from the scope of the inquiry. Survivors from Scotland and Northern Ireland are understandably going to feel very left out and betrayed by this limitation.

It is also a fact that abusers don't observe administrative or even national boundaries when abusing, and so it is entirely possible that there are links between locations inside and outside England and Wales. With this geographical limitation, it may be hard to follow these up.
The Inquiry Panel will consider these matters from 1970 to the present. However, the Inquiry Panel may be presented with evidence that will lead it to conclude that this timeframe should be extended further;
Many survivors are unhappy with this temporal limitation. There are whose who were abused in the 1960s or even earlier who want the opportunity to give evidence. If evidence of earlier abuse comes to light, it is not clear from the terms of reference whether the panel can extend the temporal limit unilaterally or whether they would have to go back to the Home Secretary for permission. I rather suspect that they will have to ask the Home Secretary, since if they could extend the limit unilaterally, there would be no point in mentioning a limit in the first place.

This, along with Theresa May's suggestion that the inquiry could later be converted into a statutory inquiry if the chair requests gives the impression of the whole thing not having been fully thought through. There's no point in putting limits on what the inquiry can look into if you already anticipate that the limits may be inappropriate.
The Inquiry will not address allegations relating to events in the Overseas Territories or Crown Dependencies. However, any such allegations received by the Panel will be referred to the relevant law enforcement bodies in those jurisdictions;
And there goes another major scandal that can't be looked into by the inquiry, the alleged abuses at Haut de la Garenne children's home in Jersey. That's three major scandals that the inquiry can't look into. No wonder some people are thinking that the inquiry is being designed carefully to find out as little as possible.
For the purposes of this Inquiry “child” means anyone under the age of 18. However, the panel will consider abuse of individuals over the age of 18, if that abuse started when the individual was a minor.
That's a fairly obvious statement.

The next part of the Terms of Reference is a list of "Principles". Here's the first.
The Inquiry Panel will have full access to all the material it seeks, unless there is a statutory impediment to it doing so;
This is a big problem. In fact there are several big problems with this.

First, if we look back the the Purpose section, it seems that the inquiry is supposed only to be looking at past reports that are already in the public domain, and no other sources of evidence are mentioned. If that is the case, then this point is somewhat redundant. There can't be a statutory impediment to looking at information that has already been made public.

But if the panel is able to look at other sources of information, then this sentence becomes a tautology. They can look at anything except the things legally they can't look at. Well, that's obvious, and to mention it here makes it seem that the panel and the public are having their noses rubbed in it concerning how limited this inquiry is supposed to be. No wonder there are people boycotting the discussions about the inquiry.

The "statutory impediment" will in fact keep an awful lot of information from the inquiry. A non-statutory panel inquiry has no powers to require the production of documents from any organisation (state or non-state) which chooses not to co-operate with the panel. We already know how difficult it is to get documents out of State organisations where failure or wrongdoing is suspected - just look at the trouble Alexis Jay had getting the documents she wanted out of Rotherham Council.

But it gets worse when you consider non-state institutions. It is vanishingly unlikely that any independent school where abuse has occurred will be willing to co-operate, for the same reason that persuaded them to cover up the abuse at the time - they don't want the damage to their reputation. An article by Andrew Norfolk of the Times earlier this year listed 130 independent schools where teachers had been implicated in sex crimes against children. That's just the schools where the abuse has been found out. There may well be others where the cover up has been successful until now. None of them will want to co-operate with the inquiry.

We've seen the attitude the Roman Catholic Church has had towards inquiries that have been held in Ireland. Without a statutory basis I can't see the church having the slightest inclination to co-operate with this inquiry.

So, it seems to me that the "statutory impediment" is enough to prevent the inquiry from holding anybody to account who doesn't want to co-operate.
Any allegation of child abuse received by the Inquiry Panel will be referred to the Police;
If the inquiry is a papers-only inquiry as suggested by the Purpose, then it's unlikely that it would ever receive an allegation of abuse from anybody, and this item in the Principles is accordingly redundant.

But this item must be there for a reason, and so notwithstanding the Purpose they must be expecting to receive allegations. So the Terms of reference are inherently self-contradictory. No chair worth his salt will be willing to take on the inquiry while the ToR remain in such a state.

Assuming that evidence from survivors is taken, this principle is in fact sensible, and the panel should provide an information pack to survivors describing how their evidence will be handled, in two parts along the following general lines:
  1. Information concerning abusers will be passed straight to the police and not otherwise be handled by the inquiry.
  2. Information concerning the failure of others (particularly within institutions) to protect the victim from abuse will be looked at by the inquiry itself.
It's important that this distinction be made, so as to avoid as far as possible confusion and disappointment among the survivors who may give evidence.
All personal and sensitive information will be appropriately protected; and will be made available only to those who need to see it;
This is in fact an important piece of reassurance. It enables survivors to retain their anonymity. Their names and other identifying details will not be published.
It is not part of the Inquiry’s function to determine civil or criminal liability of named individuals or organisations. This should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference.
Like the point on passing allegations of abuse to the police, it's important that this is made clear - nobody is going to get compensation from the inquiry, though it may well be that the inquiry's findings will provide material that will assist subsequent claims for compensation. (This of course is a further reason why many organisations will not co-operate with the inquiry: they won't want the inquiry to have evidence that will result in "findings of fact" that will expose them to claims.)

There are one or two good points in the Terms of Reference, but the overall impression is that it is a half-thought through mess. It is self-contradictory concerning the range of information the inquiry can access, there are redundant phrases within it, there are phrases whose meaning is very unclear. It has the air of having been hurriedly scribbled on the back of an envelope in response to a 30-minute deadline. It is not the way to write the Terms of Reference for possibly the most important inquiry undertaking in the last 100 years.

The terms of reference are going to have to get rewritten from scratch. They are clearly unfit as they stand.

1 comment:

  1. I agree wholeheartedly with your points here, having become thoroughly disgusted by the lack of answerability and accountability in the enquiry overseen by Lucy Scott-Moncrieff.

    Sevenoaks School (a private body) has been allowed to concoct its own self-serving travesty of an Executive Summary in place of a report. This document is misleading and inaccurate.

    The enquiry report is, however, "the property" of the private body and therefore inaccessible to anyone - including the witnesses, who are therefore unable to contest inaccurate statements and question the conclusions.