The decision by the High Court to award libel damages to two nursery workers in Newcastle over allegations of child abuse raises searching questions about how such abuse cases should be dealt with in future by the judicial system. One would be hard pressed to find a less suitable arena for assessing the veracity of allegations against care workers than a libel hearing brought by those accused of abuse.
The issue in the case necessarily became dominated not by what happened in the Shieldfield nursery to a series of very young children, but by the intentions of the review team commissioned by Newcastle city council to examine events at the nursery. This was an inevitable consequence of the defendants choosing to use “qualified privilege” – their legal protection from libel – as the main point of their defence.
The nursery workers, Dawn Reed and Christopher Lillie, had been the subject of a prosecution in 1995 on charges of abuse which collapsed when the judge decided that the witnesses, all very young, could not be relied on. The subsequent review team inquiry wrongly suggested that the two were guilty of a number of offences; this was widely reported by local and national newspapers. The judge decided that the review team had acted with malice.
This will send shivers down the spine of any hapless social worker or child welfare professional who has to investigate allegations. Once, they felt confident that they enjoyed qualified privilege while preparing such reports, but not any more. As one childcare professional put it: “Who in their right mind will sit on an inquiry panel now?”
The case highlights the inability of the judicial system to deal with allegations made by young children in any coherent way. The case has been the subject of a criminal prosecution, an inquiry without sufficient legal backing to require witnesses to attend – the two refused to appear – and a libel case. None of these is a satisfactory forum for such matters.
The Newcastle review team report was one of a series published in the 1990s on institutional abuse involving children: Leicestershire, Edinburgh, Staffordshire, north Wales and so on. The difference was that while all the others were conducted by lawyers, Newcastle chose a team of social workers and a clinical psychologist to produce its 312-page report. At the time this seemed a reasonable attempt to involve real experts, rather than lawyers who see little of the world outside courtrooms. With hindsight, though, it appears to have been a fundamental error because the report lacks the necessary rigour a legal mind might have brought to it.
But the reports by lawyers were equally unsatisfactory. They focused on procedures and the narrow train of events surrounding particular cases rather than on the wider context. They were written in ponderous language and their conclusions were often woolly. The north Wales one, for example, stretched to nearly 1,000 pages and yet skirted over key issues such as the role of insurance companies, which blocked the release of information about events in the homes because of potential liability. The Leicestershire inquiry was held in private and the report was published without any opportunity for the media to question the lawyer who wrote it.
Clearly, if children’s voices are to be heard and provided with the protection they should have, there needs to be a system through which such allegations can be thoroughly and carefully investigated. This has become all the more necessary because of the way the issue of child abuse has become polarised between two deeply entrenched camps.
First, there are the lawyers acting for alleged victims who argue strenuously that their clients have suffered institutional abuse and are telling the truth. But the running has been made by the other side, a group of campaigners and journalists which includes Bob Woffinden and Richard Webster, the authors of the article in yesterday’s G2 on the Newcastle nursery affair who had approached the pair and suggested they sue for libel. The argument put forward by these campaigners is that these allegations are, in the cases of younger children as in Newcastle and in several instances in the US, “got up” by a group of panicking parents and vindictive social workers who quickly go into a witch-hunting mode. In the case of children’s homes where the abuse allegations have been made long after the event by the children themselves, the explanation is that they are the result of police trawls of former residents whose malicious stories are stimulated by their desire for huge compensation pay-outs.
The media, including the Observer and Panorama, have picked up on these alleged cases of false accusations and given the campaigners a free run in dominating the debate with often quite uncritical coverage. As with any type of crime, there may well be victims of unfounded allegations in jail. However, the coverage has been disproportionate. The way that these alleged false accusations have been able to dominate the debate has been demonstrated by recent hearings of the Commons home affairs committee into past cases of alleged abuse in children’s homes. The sessions have, at times, turned into a witch-hunt of the lawyers who have acted for the victims. One, Peter Garsden, was accused at the hearing on July 11 of profiteering on these cases. Despite the vociferous campaigning, there is strong evidence of widespread abuse of children, particularly during the 1970s and 1980s when standards in homes were far more lax than today. A series of high-profile convictions has resulted through, in many cases, guilty pleas.
The gradual unfolding of these scandals, starting with the Frank Beck case which came to court in 1991, changed perceptions on child abuse. The police, just as they had with domestic violence, began to recognise that criminal acts had occurred. Social workers and other professionals in the field began to listen to children reporting abuse and, however difficult the circumstances, to act on what they heard. Sure, this led at times to inquiries that should not have started, such as the David Jones case in Liverpool. However, the situation is far better than in the days when such allegations were routinely ignored, a fact recounted to me by many victims.
Indeed, the evidence of the existence of quite widespread abuse is plain to see, as evidenced by the harrowing recent TV series on Scotland Yard’s paedophile unit. The law and the judicial system need to recognise that these cases pose specific problems that need to be addressed – the youth of the victims, the highly-charged atmosphere of the circumstances, and the fact that they revolve around one person’s word against another, usually with no witnesses to the events.
One way forward would be the appointment of special prosecutors with enhanced powers of investigation, possibly as with the continental model of investigating magistrates. They need to be experts at judging the veracity of allegations as well as in social work and local authority procedures. The fallout from yesterday’s case must not be allowed to usher in a return to the dark days of the 1970s when children’s voices were not heard.
The following correction was printed in The Guardian’s Corrections and Clarifications column, Saturday August 3, 2002. In this piece, it was said that the main point of the defence was qualified privilege. In fact, the review team’s defence also relied heavily on the claim that the allegations of child abuse were true. Both this defence and the defence of qualified privilege failed.