Sins of the past - child abuse in the Catholic Church

Tag: usa

By Richard Scorer in Abuse Cases

An article I've written for New Law Journal this week:

There has been worldwide publicity recently regarding child abuse scandals in the Catholic Church. In the UK, Catholic abuse cases have already featured in the media for over a decade, and the courts here have become very familiar with civil claims for child abuse.

The Catholic Church (in the form of its constituent dioceses and orders) has vigorously contested damages claims and has sought to utilise every available line of defence. How has the law developed in response to these cases, and what issues remain to be clarified?

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Since civil claims for child abuse first came before the courts in the late 1990s, two areas of contention have stood out. The first is limitation. As Sedley LJ said in the Ablett case in 2000, “It is in the nature of abuse by children that it creates shame, fear and confusion, and these in turn produce silence. Silence is one of the most pernicious fruits of abuse. It means that allegations commonly surface, if they do, many years after the abuse has ceased”. Hence, civil claims for abuse frequently raise limitation issues, perhaps no more so than in Catholic cases where the authority and power of priests can act as a strong deterrent to disclosure. However, after a decade of appellate court litigation, the limitation position in abuse cases is now fairly settled. In the Hoare decision in 2007, the House of Lords unified the limitation regimes applying to cases of direct assault and cases of negligence. Both causes of action are now subject to a primary limitation period of 3 years with discretion for the court to waive the limitation bar in certain circumstances – something courts have shown a willingness to do even up to several decades after the abuse occurred, provided a fair trial can still take place. Whilst the Catholic Church continues to plead a limitation defence to many claims, in reality the scope of this defence has been narrowed by the Hoare decision.

The second main area of contention has been vicarious liability – to what extent is an employer of an abuser liable for abuse committed in the context of employment? Until 2001, no vicarious liability could attach to sexual abuse- it could not be regarded as a mode of carrying out the employee’s duties. Claimants had to prove that the employer was negligent – i.e. that he knew or ought to have known about the abuse or ought to have suspected it. This changed with the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The House of Lords held that vicarious liability could attach to the employer where the employee’s misconduct “was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”. From the point of view of claimants, this was a significant advance in the law. In many cases, it would no longer be necessary for the claimant to prove negligence by the employer- the simple fact of employing the abuser would be sufficient to create liability.

With a limitation regime relatively favourable to claimants and the principle of vicarious liability now beyond doubt, it was perhaps inevitable that the Catholic Church, facing hundreds of claims for historic abuse, would try to unearth other lines of defence. The main one which has been employed in recent cases is to contest the ambit of vicarious liability. In other words, whilst the principle of vicarious liability cannot be disputed post-Lister, the scope of the principle provides much opportunity for argument, especially given the formulation of the test in the Lister judgement (“so closely connected with employment that it would be fair and just to hold the employer vicariously liable”).

A good illustration of the arguments now being deployed is the recent case of Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256. Maga, a non –Catholic, became friends with a paedophile priest, Father Clonan, through a shared interest in sports cars, was invited by Clonan to the church disco, and was paid by Clonan to do various jobs like cleaning the presbytery at Clonan’s church, although other jobs were unrelated to church activities. The Claimant was sexually abused by Clonan including in the presbytery. At first instance, the court held that the Archdiocese was not vicariously liable for Clonan’s conduct with this claimant- the claimant was not a Catholic. The Court of Appeal overturned the decision, emphasising the priest’s duty to evangelise, which involved befriending non Catholics and gaining their trust: vicarious liability would therefore apply. In the words of Longmore LJ: “For centuries the Church has encouraged lay persons to look up to (and indeed revere) their priests. The church clothes them in clerical garb and bestows on them their title Father, a title which Father Clonan was happy to use. It is difficult to think of a role nearer to that of a parent than that of a priest. In this circumstance the absence of any formal legal responsibility is almost beside the point”.

Disclosures of abuse in the Catholic Church show no sign of abating, and claims are likely to continue in large numbers. With limitation settled, and the principle of vicarious liability beyond argument, it seems likely that the Catholic Church will continue to try to contest the scope of the vicarious liability doctrine in further cases. As Maga demonstrated however, the courts may have little sympathy for the church’s attempts to escape liability on this basis.

Richard Scorer, Head of Personal Injury, Pannone LLP

http://blog.pannone.com/personal-inju...hurch-407/