The Catholic Church has not ruled out blocking compensation claims for child sexual abuse if it occurred before certain time limits.
The church’s Truth, Justice and Healing Council released a set of guidelines for the way it deals with survivors’ civil claims ahead of a royal commission hearing on the Melbourne Archdiocese’s handling of historic abuse on Tuesday.
The guidelines – which church lawyers helped draft – reveal for the first time how it intends to deal with legal defences which survivors consider to be the biggest barriers to obtaining compensation from the church.
Most states and territories have laws that allow the church to block civil claims for child abuse in court if they were made beyond certain time limits. Victoria last year abolished statutes of limitation for child abuse, largely because survivors typically take decades to disclose their abuse.
The guidelines say the church will not take up this option unless it risks having to bear a “disproportionate share” of compensation compared to other defendants, or if so much time has passed that “the Church authority considers that a fair trial would not be possible”.
Lawyer Viv Waller, who has represented hundreds of clergy abuse survivors against the church, said that its failure to totally resile from technical legal defences left victims of historic abuse in their vulnerable position against authorities.
While the church had become more willing to negotiate with survivors rather than rejecting their claims out of hand or forcing them into low settlements through internal redress schemes, “the church is still holding all of the cards,” she said. “There’s still a very acute power imbalance between the church…and the survivor of sexual abuse.”
The guidelines – which largely mirror the “model litigant” rules for the federal government – also deal with a NSW court decision known as the ‘Ellis defence’, which ruled the church’s property trust could not be sued for child sexual abuse.
The council’s chief executive officer Francis Sullivan has maintained the church should always provide defendants an entity to sue. The guidelines say the church will help “the claimant to identify the correct defendant to respond to the legal proceedings”.
Ms Waller said the guidelines do not guarantee it will refrain from using the defence. “That falls well short of allowing the church to be sued, providing an entity to be sued that is backed by insurance.”
She had unsuccessfully sought written promises from the Christian Brothers that they would not rely on the defence in recent months.
“We all know the difficulty in issuing court proceedings is they’re able (through the Ellis defence) to drive quantum down in any negotiated settlement.”
Mr Sullivan insisted that the guidelines ensured survivors would never be left without a defendant. “It’s not meant to be a compromise (or) a conditional commitment. The commitment is that the church authority will make available an entity to be sued.”
While lawyers who represented the church in the Royal Commission into Institutional Responses to Child Sexual Abuse had helped draft the guidelines, it was not a “legal document”, he said.
Mr Sullivan conceded the guidelines would be difficult to enforce despite its endorsement by all Australian Archbishops and the church’s two most senior religious leaders, because bishops were autonomous.
“Hopefully these guidelines will form part of the general standards the church uses in assessing how it performs in these areas.”
Counsel assisting the commission, Gail Furness, SC, said on Tuesday that the Melbourne Archdiocese had paid about $12.8 million in compensation for 316 child sex abuse claims between January 1980 and February 2015.
Ms Furness said that the church had paid much more in compensation to survivors who pursued civil claims – about $270,000 on average – compared to $46,000 to those who went through the church’s internal Melbourne Response redress scheme.
Full article: http://www.smh.com.au/national/catholic-church-does-not-rule-out-statute-of-limitations-in-abuse-claims-20151124-gl6w05.html