Wendy Blacker
Author

Wendy Blacker

Director

wendy.blacker@wblawyers.com.au

+61 2 8123 1155

Child Abuse – Finding a Voice

Disclosing child abuse can be a rollercoaster journey with many stops and starts

The Royal Commission into Institutional Responses to Child Abuse (the Commission), which was established in January 2013 and ran until December 2017, disclosed the prevalence of child abuse in institutional settings in Australia.  The Commission’s findings are documented in a report published on 15 December 2017, entitled ‘Final Report’: https://www.royalcommission.gov.au/sites/default/files/2019-01/carc-final-report-preface-and-executive-summary.pdf.

While the Commission brought to the surface many disturbing matters relating to the failure by institutions to protect children from child abuse and to take appropriate action upon suspecting or learning of its occurrence, the stories which unfolded serve as a salient reminder for all who are involved in the care of children the imperative of always remaining vigilant.

The Commission found that survivors of child abuse who spoke with the Commission, on average did not report the abuse for some 23.9 years (females 20 .6 years and males 25.6 years) (see: Final Report p. 22).  Such is the impact of child abuse.

The non-disclosure of child abuse arises due to a number of complex and multifaceted reasons, but that which seems to be a common trait disclosed in studies on this topic and the Commission’s own findings is the shame, embarrassment, guilt and even a sense of loyalty to the perpetrator together with a fear of not being believed.  As a consequence, even when abuse is disclosed, subsequent denial and recantation of allegations may occur.

Lawyers and the law play an important role when assisting survivors of child abuse seek compensation for failures by institutions and persons in authority to protect and shield them against the criminal conduct of perpetrators.  Lawyers (on both sides of the fence), must be well acquainted with the manifestations of child abuse and the evidential difficulties with forensic evaluation.  A survivor’s lawyer is also their ‘gate keeper’ whose responsibilities include ensuring that the process of seeking compensation is not exacerbating and traumatic.  All lawyers should adopt a trauma-informed approach at all times.

In New South Wales, the Civil Liability Act 2002 (NSW) (CLA) has been amended by the inclusion of Part 1B which, in essence, imposes on institutions a duty to prevent child abuse and makes an institution vicariously liable for child abuse committed by employees and the like.  Until this amendment taking effect, vicarious liability is left to be established under the common law.  The amendments also provide for proceedings to be brought against unincorporated associations, which addresses an insurmountable difficulty that survivors have faced in the past.

These amendments to the CLA impose a statutory duty on institutions to prevent child abuse being perpetrated by persons employed by and associated with the institution (whose relationship is akin to that of an employee).  The amendments also reverse the onus of proof so that now the institution must prove in negligence claims that it took reasonable precautions.

The amendments mirror recommendations made by the Commission in its Final Report.  The amendments facilitate a trauma-informed approach to the conduct of claims and take account of the difficulties that survivors face in marshalling historical evidence.

Anecdotal evidence suggests that there has been a shift in societal attitude towards child abuse with the acknowledgement that it is and has been more prevalent than originally thought and that the survivors of child abuse carry a variety of trauma manifesting in psychological and psychiatric conditions.  The challenge for lawyers acting in this specialised field is establishing the veracity of the allegations in the absence of corroborative evidence and diagnostic sequalae that can be inconclusive due to manifestations being common to an array of pathological and normative conditions.

Our firm has acted in over 450 child abuse claims.  With our depth of experience and breadth of knowledge, we bring both a sound understanding of the law and heightened empathy to claims of this nature.

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