Introduction

Those accused of child abuse, but who maintain their innocence, may seek compensation from those who have initiated the allegations or acted upon them (e.g. medical professionals or those working in social welfare or child protection services). The damage for which compensation is sought may vary from psychiatric injury or distress to damage to reputation or economic losses in the form of lost remuneration or forfeited career opportunities. To this end, the alleged abuser may consider bringing proceedings asserting, for example, that doctors have provided an inadequate standard of therapeutic care or that local authorities have negligently or maliciously conducted their investigations into the alleged child abuse. Such claims may sound in malicious prosecution, defamation or the tort of negligence.

Introduction

It has been suggested that in the United States, the preferential legal treatment accorded to abuse claimants has resulted in the courts applying a ‘broad brush’ approach to proof of damage and causation. Once the wrong has been proved, the courts tend to assume that the abuse is responsible for all of the claimant's psychological problems without applying the strict rules of causation which would often otherwise spell the end of the claimant's case. Whatever the experiences of the US, the requirements pertaining to the proof of damage and causation may very well constitute insurmountable obstacles for the abuse claimant in England and Wales. It should be noted, however, that matters pertaining to proof of damage and causation in this type of litigation have rarely surfaced in our courts because the claim has been disposed of on prior issues of limitation or liability, leaving other issues unexposed and unexplored. The potential concerns arising out of the damage/causation inquiry are myriad, and the lack of legal authority on these issues specific to abuse claims makes reference to the experiences of other similar jurisdictions expedient for the purposes of speculating how these issues might be played out in the future. For example, it is frequently the case that abuse claimants have suffered a number of traumatic events apart from the abuse which is the subject of the litigation, and such complexity causes intractable problems when assessing causation and quantum.

The limitation framework

At the time of writing, the law of limitation as it affects abuse claims is poised for reform. If reform occurs, it will most likely take the form of a House of Lords ruling in an appeal from the A v Hoare judgment or Parliament's overdue enactment of a Bill implementing the Law Commission's recommendations of 2001. If reform has been effected by the time of publication, much of the discussion surrounding Stubbings v. Webb which follows will be of largely historical interest, but much of what is examined under the heading ‘non-battery claims’ will become equally relevant to actions in battery against the perpetrators of abuse.

Whatever the current state of the law, the popularity and potency of the limitation ‘defence’ to child abuse litigation has profound implications for claims in this area. It is undoubtedly the effectiveness of our limitation regime in pre-empting most civil litigation concerning abuse from ever reaching a full hearing that is responsible for the stunted development of the law covered in this book.

Mirroring the pattern of civil litigation connected with child abuse, the majority of this text has dealt with compensation for the harms inflicted by sexual abuse. Many have asserted that this type of abuse is unique in causing such extraordinary psychological repercussions to the abused and in being an act of such extreme heinousness on the part of the abuser. This distinctiveness has led to an assumption that the claims derived from sexual abuse merit special treatment by the courts. Whether or not these assertions of uniqueness are exaggerated, this perceived exceptionality has shaped the case law which emanates from claims for compensation. It seems that this real or perceived distinctiveness has found expression in two converse judicial responses: the ‘pliable’ and the ‘exacting’ responses.

Under the exacting response the courts tend to pronounce abuse claims as unworkable; their lack of fit with the templates of traditional tort actions may prompt the rejection of claims on procedural or doctrinal grounds. The courts express themselves as unwilling to accommodate this unfortunate victim and as not being prepared to distort principle to cater for an exceptional abhorrence. There are a number of examples of this approach in the jurisprudence of England and Wales, the most well known being Stubbings v. Webb, in refusing to accept that intentional abuse could be articulated as a ‘breach of duty’ in order to provide abuse victims with access to more generous and flexible limitation periods.

Introduction

This chapter explores civil litigation by adult claimants alleging that they were abused during their childhood years and examines the different forms of action which might be used to launch such proceedings. The particular difficulties in establishing each cause of action will be addressed and, where the courts of England and Wales have yet to hammer out these issues, case law from other jurisdictions is referred to as a means of providing tentative suggestions as to how English law might develop. Generic issues of proof of damage, causation, remoteness and limitation are dealt with in later chapters.

The current state of civil litigation relating to abuse

The number of civil claims for the harm caused by child abuse appears to be rising steadily and promises to continue to do so. This is not necessarily part of any compensation culture (which in any case has been rejected as fictional) but is the result of the fact that the prevalence of child abuse and the association between sexual abuse and long-lasting psychological trauma are now widely accepted.

Introduction

As will become apparent, the identification of child abuse is a multidisciplinary affair, drawing upon the combined but not necessarily compatible wisdom of medicine, law and sociology. This book seeks to provide an account of the journey of child abuse through the evolution of these different perspectives culminating in the legal, clinical and sociological discourse which prevails today. It is hoped that this discussion will serve as a useful backdrop and prelude to examination of the legal issues which have arisen in the context of abuse claims, and that it will assist in explaining judicial attitudes to abuse claims and some of the peculiar difficulties which abuse claimants face.

Evolving constructions of child abuse

The concept of child abuse has been described as ‘more like pornography than whooping cough’: in other words, it is a socially constructed phenomenon which reflects the operative values and opinions of a particular culture at a given point in time rather than an objectively defined occurrence. A striking example of this fact is the story of the Pitcairn Islanders recently convicted of having sex with adolescent girls from the age of 12. The case for the defence (although ultimately unsuccessful) was built upon the revelation that the practice of sex with adolescent girls on the islands had become the cultural norm and was an accepted ritual in Pitcairn Islands' society.

Rates of marriage are declining in the European Union. Rates of divorce in some member states are increasing rapidly. Rates of cohabitation are escalating. It seems, in fact, that the institution of marriage is unpopular, and increasingly so. Or, is it? Both the Netherlands and Belgium have introduced marriage for same-sex couples, and a significant number of member states now provide some form of legal recognition of same-sex relationships. Contradictions abound: the European Convention on Human Rights and the Union's Charter of Fundamental Rights both declare the ‘right to marry’ and prohibit discrimination on the grounds of sexual orientation. Yet, the Court of Justice and the Court of Human Rights refuse to define gay and lesbian partnerships as families and defend marriage as the preserve of heterosexual couples only.

In such a complex, controversial and empirically challenging context, what is the role of law and, in particular, the role of European Union law in the regulation of intimate relationships? The answer to such a question is not immediately apparent. It may be desirable that there is no regulation of intimate relations at the Union level, but this is not realistic in view of the competence of the Union. In the fields of equality, free movement, immigration, asylum and judicial co-operation, to name just a few areas, it is simply not possible for the Union to avoid encroaching on personal relationships.

Any study of European Union law must be set within a theoretical framework. Accordingly, the aim of this and the following chapter is to establish just such a framework, laying the foundations for the subsequent examination of the concept of family and emerging family law of the Union. This chapter begins by offering a brief sketch of recent jurisprudential debates regarding the nature and future of European legal integration. This is an essential precursor to the subsequent section which proposes a human rights foundation for analysing concepts of family and as a basis for the Union's family law.

Positivism, pluralism and the jurisprudence of the European Union

During the previous decade or more, the impact of European integration on established jurisprudential paradigms has become ever more apparent. In simple terms, nothing really seems to fit any more. On the one hand, classical legal positivism, so dependent upon conceptions of unitary sovereignty, coherent systems, hierarchies and rules, suddenly appears to be hopelessly arcane. On the other, the more radical postmodern critique, whilst celebrating this apparent incoherence, rarely seems capable of answering the more pressing policy questions.

The aim of this section is to suggest that the way forward lies between these extremes, with a system of rules that is better able to address the questions of particularity and ‘otherness’ that underpin the postmodern critique and which moves away from the paradigms of positivism. This is a solution which caters to reality. The new Europe is very much a legalistic Europe.

The ‘dominant ideology of the family’ is that of a white, heterosexual, married couple, with children, all living under the same roof, where the husband is the main breadwinner and the wife the primary carer of children and other dependants. In other terminology, this is, of course, the traditional nuclear family. This is ‘the family’ which frames debates on families and family law and it is the ideal against which other family forms and practices are measured. It is also ‘the family’ which bears little comparison to the realities of family life in Europe today, yet it continues to exert significant force over judicial reasoning and legislative activity. This chapter examines, first, the dominant ideology of the family, before going on to outline the realities of family life, the new sociological explanations for changes in family practices and the new and emerging ideals of family life. It is argued that the European Union must embrace a more diverse, pluralist concept of family which should then form the basis for its regulation of families and emerging family law.

The dominant ideology of the family

The dominant ideology of the family reproduces stereotypes and norms for women, men and families, which may not reflect reality, but which frame discussion of issues and against which the legitimacy of individual claims are judged. As Diana Gittins suggests, the ideology of ‘the family’ has ‘influenced, and continues to influence, social policy and the ways in which laws are formulated and implemented for the population overall’.