by Kathleen Hallisey

Some years ago, amongst abuse lawyers in the UK, it was said that the perfect forum for an abuse claim would be some Narnia that combined US damages and UK limitation. The British civil legal system, where abuse claims are decided by a single judge, is notoriously tightfisted with compensation. American juries, often composed of individuals from varied backgrounds more akin to those of victims/survivors, were decidedly more generous in their valuation of damages than the often privately educated individuals who tend to dominate the judicial benches in England and Wales. Not to mention, juries in the US frequently saw fit to award punitive damages where appropriate. A similar concept, known as exemplary damages, exists in the British legal system but is never awarded in abuse cases. To be clear, this is not because institutions in England and Wales haven’t engaged in the same level of cover-up as in the US.

Despite the lack of juries and punitive damages, rather than a hodgepodge of varying laws on limitation per US state–a sort of postal lottery for a victim/survivor of abuse–England and Wales have a singular system for limitation.  A three-year period that can be extended at the court’s discretion under Section 33 of the Limitation Act 1980. The factors considered by a judge in allowing a case to proceed outside of the 3-year time limit are few—just six—and for many years, the judiciary was fairly open to allowing abuse cases to move forward. However, like all pendulums, it has swung considerably in favor of defendants in recent years.

As victims and survivors in England and Wales sat waiting and hoping for the pendulum to swing back in their favor, the recommendations of the Independent Inquiry into Child Sexual Abuse emerged—imagine if the US held a national inquiry investigating institutional child sexual abuse—with the recommendation that the limitation in abuse cases should be abolished. It could be great news for victims and survivors, but perhaps not. The Ministry of Justice opened a consultation and lawyers responded. It is unclear if the law would be retroactive, allowing the thousands of victims and survivors who have either lost their claim due to limitation or been advised that a claim is not possible, a second chance at justice. Scotland abolished limitation in abuse cases in 2017 but added a caveat that a case could not proceed if the defender (defendant) could prove substantial prejudice due to the passage of time. Colleagues in Scotland say that the abolition of limitation in abuse cases has made little difference in practice because defendants raise the argument of substantial prejudice in nearly every case.

While England and Wales were benefiting from their singular approach to limitation, and victims and survivors were successful for many years in convincing judges to apply their discretion, US states, under pressure from victims and survivors, began reevaluating their limitation laws. In 2014, Massachusetts extended the statute of limitations to 35 years in abuse cases occurring after June 26, 2014, with various caveats regarding abuse occurring before that date. In 2019, New York extended the statute of limitations to 20 years, and in 2022, passed the Adult Survivors Act, which gave victims and survivors a one-year window to file a claim. Sadly, that window has now closed.

So now the question must be: can the perfect forum, the so-called Narnia for victims and survivors of abuse, be created? It is possible. It would require the abolition of limitation in all abuse cases, regardless of when the abuse occurred, and would award victims and survivors the level of compensation they deserve while punishing the institutions that allowed the abuse to happen. After all, what a testament to the “special relationship” between the US and the UK if both countries showed their courage in creating the perfect forum for victims and survivors of abuse.