In Residence

A Scottish Institute for Residential Child Care paper on historic abuse in residential childcare, by Moyra Hawthorn…

The abuse of children and young people in residential care that happened in the past is now more commonly known as Historic Abuse. Allegations of abuse in the past, and apologies for this, have become topical in recent times. In Scotland on 1st December 2004, the First Minister took the unprecedented step of offering:

“…a sincere and full apology on behalf of the people of Scotland to those who were subject to such abuse and neglect and who did not receive the level of love, care and support they deserved and who have coped with that burden all of their lives”
(Scottish Parliament, 2004: 3).

However, what do we know about the nature of what is meant by historic abuse? How can agencies best respond to allegations of abuse in the past and what can they learn to help improve vigilance in the future? Sadly, the abuse of children while in the care of local authorities or voluntary organisations is still within living memory, as reports such as the Edinburgh Inquiry (Marshall, Jamieson and Finlayson, 1999) and Waterhouse Inquiry (2000) into abuse of looked-after children demonstrate. Therefore all residential child care practitioners should be aware of the issues involved.

This paper seeks to offer some guidance around this important area, and encourage discussion among practitioners at all levels. The paper was the result of work carried out by a short life group on historic abuse which was set up by SIRCC. The work of this group informed the debate at Scottish Parliament on 1st December 2004 on abuse in children’s homes (Scottish Parliament, 2004).

What Is Historic Abuse: A Definition

For the purposes of this paper, the definition of historic abuse is that used in The Lothian and Borders Joint Police/Social Work Protocol on the Management and Conduct of Enquiries into Allegations of Historic Abuse: Historic Abuse will include all allegations of maltreatment whether of serious neglect or of a sexual or of a physical nature which took place before the victim(s) was/were aged 16 years (or aged 18 in some circumstances) and which are made after a significant time has elapsed.
Often the complainant will be an adult but some cases will apply to older children making allegations of abuse in early childhood. (Lothian and Borders et al., 2001: 5). The term Historic Abuse is value laden and imprecise. For example, corporal punishment in schools, or physical chastisement within the home and community that were acceptable in the past are now perceived to be abusive.

In addition, perceptions of acceptable child rearing practices have changed over time. This trend is recognised and Caring for Children Away from Home (Department of Health, 1995) proposes that: “A look over the last century would suggest that the threshold beyond which child abuse is considered to occur is gradually being lowered.” (1995: 15)

However, while the abuse may have taken place many years ago and be regarded as ‘historic’ by the agencies involved, it is not ‘historic’ for the person who experienced the abuse, which may continue to have a profound impact on their lives. The definition used in this paper has implications for practice.

Decisions need to be made by those investigating such allegations as to whether the experience reported as historic abuse constitutes maltreatment or neglect in terms of the accepted standards of the time when it occurred. This is recognised in the Fife Council Independent Enquiry where Black and Williams (2002) emphasise the importance of setting the historical context (2002:7).

The Legislative Background

While there have been Regulations for the operation of Children’s Homes in England since 1951, there were no similar Regulations in Scotland until 1959 when the Administration of Children’s Homes (Scotland) Regulations 1959 came into effect.  Since then, it has become apparent that some of the standards of practice before the implementation of the Regulations were unacceptable.

A number of children and young people suffered poor quality care and this was not detected or acted upon at the time by the responsible bodies. These are the types of experiences that are likely to be referred to as historic abuse. Reports of abusive care practices require to be considered against the existing legislative framework at the time, both civil and criminal, as well as agencies’ general sense of ethical responsibility to former residents.

Child protection legislation falls under criminal law, with the burden of proof being ‘beyond reasonable doubt’. The Regulations in respect of residential care fall under civil law, with the burden of proof being ‘on the balance of probabilities’ which is less stringent than criminal law (Baillie, Cameron, Cull, Roche and West, 2003).

In Scotland in recent years there have now been several convictions in cases of historic abuse. For example, in Edinburgh in 1997, two former care workers were convicted of serious abuse of children in the care of Edinburgh Corporation and Lothian Regional Council between 1973 and 1987 (Marshall, Jamieson and Finlayson, 1999). In Fife, David Logan Murphy was convicted in 2001 for the sexual abuse of children in residential care (Black and Williams, 2002).

Finally, it is important to consider allegations of abuse that would not be regarded as ‘historic’. These are situations where abuse is more current and which are addressed by existing legislation, child protection procedures and disciplinary procedures within agencies.

Responding To Allegations Of Historic Abuse

Residential child care practitioners at all levels have a responsibility to be aware of the possibility of historic abuse in their agencies. They also have a responsibility to learn the lessons of the past so that the integrity of safe care is maintained. The following issues were identified by the working group as areas where practice may be improved.  

1.) Record Keeping  

One of the main lessons learned from investigations into historic abuse is that more attention should be paid to record keeping in the present with a view to the future. In cases of historic abuse, police reported that records necessary to pursue these allegations are often poorly kept and unhelpful for investigative purposes because they contained little factual data to corroborate witness statements. Some practice points were highlighted by the working group in relation to record keeping and storage.

A) Retaining And Transferring Records  

Attention should be paid to how records are stored. All types of storage have their limitations. For example, the use of microfiche in earlier times was a leap in technology over paper-based storage systems. However, the subsequent use of microfiche in contemporary times has proved unhelpful in investigations due to its limited life span and poor reading quality.

Tracking records once they leave the agency for investigative purposes could be problematic unless the transfer was recorded. When records are passed over to any other agency, details should be maintained on what has been transferred and to whom. A representative of the receiving agency should sign to record receipt and details of the transfer should be kept on file.  The working group discovered that while some agencies had a policy in respect of the retention of records, fewer included a statement of standards of storage. One organisation which does have such a statement is NCH (2005).

The overriding message was the importance of developing a high quality, standards based archiving policy that is regularly reviewed. Experience demonstrates the value of involving skilled archivists who can offer considerable advice in respect of safe care of records in a manner that ensures efficient retrieval. NCH’s statement is based on the archiving industry. In all events, reasons should be given for retaining or discarding records.
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B) Clarity About The Purpose Of Record Keeping

Decisions need to be made about for whom records are kept. Records often have a combination of purposes, for service users needs as well as organisations. Legal advice should be sought as to what material should be destroyed and why, dependent on how the information will be used in future. Useful records for providing corroboration and confirming memories are log recordings, young people’s files, rotas, personnel files, diaries, building plans, photographs and complaints forms. These records should be dated and retained.

Past records are also helpful as commentaries on previous expectations of practice and drawing comparisons to inform current practice.  Soft information’ can also be helpful in investigations. This includes documentation such as supervision records, policy guidance, child protection procedures and codes of conduct at the time. This is often required as a measure of the standards of practice within which staff operated. Again these should be dated. In the past, these types of records were often not retained, which has created difficulties for investigators of historic abuse.   

C) Access To Records

Former service users may seek access to records as they represent part of their personal history. This may take a low priority in organisations and can be time consuming for practitioners. However, this access is important for former children in care. As such, the records should be protected by agencies. In respect of storage and access to records, agencies in the public sector now have responsibilities under the Freedom of Information (Scotland) Act 2001 to provide information held to anyone requesting it, subject to certain conditions.

2. Passing On Information About Alleged Abusers

Initial information alleging historic abuse comes to agencies in a variety of ways. It may come from another agency (including the police) already involved in an investigation where they believe it is important to pass it on either for child protection purposes, or to further existing enquiries. Sometimes it is offered by people who want to remain anonymous or ‘off the record’, or the information given at this point may be unsubstantiated. The status of this initial referral informs subsequent action.

If information pertaining to allegations of historic abuse is received in a covert or unsubstantiated form, it can sometimes be linked to other information, or an enquiry that is underway. The appointed person can then liaise with the source, asking them to .go on record’ with the information or allegations. This can create dilemmas if the staff member against whom allegations are made is still employed in a care setting. If there is no other relevant information, it has to be a matter of professional judgement whether the staff member is told of the unsupported allegation concerning them.

The following points may help inform decision making:

• If they are told, and they are guilty, they might seek to cover their tracks
• If they are innocent, they should be aware that someone is passing on malicious information about them
• There needs to be a match between employment practice (in respect of the investigation) and child protection practice, to ensure that all parties are dealt with fairly. The most effective way of managing such allegations is to involve the police at an early stage if there is any possibility that the allegations may be substantiated. They will then notify other relevant employers.

3. Supporting Survivors

All agencies which have provided residential child care should consider how they would support survivors of historic abuse. Best practice indicates that agencies should be as supportive to survivors as possible while recognising that the investigative process might be drawn out and that the re-awakening of past experiences is likely to be painful.

The working group sought the advice of a group working to support adult survivors. Survivors’ needs and wishes for support vary, both individually and at different stages in their lives. Many did not wish counselling or other forms of medico-psychological help, but had their own preferred support systems. Some survivors simply wished periodically to talk through their experiences or to receive an acknowledgement that the abuse had happened.  

Survivors often seek an apology from the agency as a means of closure. This has been difficult for agencies to provide consistently, due to legal issues, and will be further discussed later in this paper. It is clear that some aspects of the support process could be facilitated by agencies sensitive to the survivors’ experiences. Practical examples of this might be access to records or a consistent agency contact.  

It is important that agencies establish from survivors their own preferred form of support. Agencies should have a system and a contact, should survivors wish to refer themselves again without having to repeat their circumstances unnecessarily. This task can either be carried out by an allocated individual within the agency, or contracted out to a specialist agency. Some people find survivors’ groups helpful.

While there is a role for self-help groups, practitioners should also have a role in facilitating such resources where necessary. For example, staff in many organisations already have counselling skills. Additional training could ensure that their knowledge is specific to counselling survivors of institutional abuse.{mospagebreak}

4. Supporting Current Staff

A number of issues have emerged in respect of the impact of allegations of past abuse on current staff. Staff may need support if they have worked alongside an alleged perpetrator. They may feel disbelief at being ‘seduced’ by them, or guilty because of the consequent abuse of young people.

The tension resulting from loyalty to the team as against ‘whistleblowing’ on bad practice can result in frictions. If this happens, then children’s current needs for support and protection can be compromised. Lothian and Border’s Joint Police and Social Work Protocol (2001) addressed issues around staff loyalties, pointing out:  

“Individual loyalties which impede [protection of children/vulnerable adults and the community at large] are essentially misplaced. Collusion, however well intentioned, may only contribute to greater risk and prevent a just and satisfactory outcome for all concerned.”
(2005: 14-15)

The report emphasises that: “The Social Work Liaison Officer should ensure throughout the enquiry that employees who are potential witnesses are able to provide information freely and truthfully without feeling compromised.” (2001: 15)

It is the responsibility of senior management to ensure that if current staff are to be questioned by police, they are briefed about the reasons why. However, staff should not be rehearsed to take a particular agency or personal view. Senior management should also take responsibility to debrief staff after a police investigation. Staff who work for a larger agency but who are not involved in the unit where the investigation is taking place need appropriate factual information about measures in place (such as insurance and media coverage) to be able to deal professionally with any questions directed at them outwith the unit.

The overall impact of allegations could result in difficulty in recruiting in the residential care field, in particular recruitment of male staff. This heightens the need for dissemination of good practice in the safe care of children and young people in residential settings.

5. Dealing With False Allegations

The issue of false allegations is very complex, tied up with ‘false memory’ and the view that these allegations are motivated by a desire for compensation. Without wishing to minimise the very serious nature of historic abuse as well as the importance of all such allegations being taken seriously and followed up rigorously, there is increasing concern about some aspects of the investigative process as it exists, in particular the current practice of naming alleged offenders. Some people have been convicted, only to have their cases quashed and reputations upheld in court. Such practice impedes justice for all victims, as well as those falsely accused.

There was concern in the working group that current practices for investigating allegations of historic abuse use the same process as for child abuse. This may mean that there is a disproportionate response to poor practice. As previously indicated, some practices reported in the past do not meet the criteria of child abuse even by present day standards, although they do constitute poor childcare practice. Such practice may include reported experiences in the 1970-80s such as staff bathing two unrelated children together at one time, units having communal (albeit clean) underwear for children and children being taken on family holidays by staff members.

In an effort to move away from a climate of ‘agency protection’ to that of ‘child protection’, agencies should consider the establishment of a system which allows people with concerns to report and discuss these without triggering a child protection investigation.  Such an initiative should come from a national level to ensure consistency in standards applied.

6. Apologies And The Role Of Insurance Companies

Residential child care agencies need to buy insurance. Insurance provides added protection for all concerned when problems arise, and can mean the difference between the continuation of a service or its demise. A particular frustration for agencies was the resistance by insurance companies to permit them to offer genuine support, empathy and apology to survivors. In insurance terms, an apology is an admission of liability and should not be made until all proper investigations have been carried out.

This was contrary to the agencies’ ethos as they often wished to extend such a response immediately. Given the importance of apologies to survivors of abuse, it is clear that discussions on this subject need to take place when insurance policies are taken out. Agencies reported that it had proved fruitful to take time with representatives of insurance companies to develop a mutual understanding of each other’s perspectives.

In negotiating such a mutually agreeable response, it should be recognised that the survivors must be treated fairly, and believe themselves to be treated fairly. Advice was sought from the Institute of Business Ethics (2003) who suggested the following:  Our solution would be to make a distinction between sympathising and apologising. Until the facts are known, organisations should not apologise for something that they may or may not have done. Instead, they should make it clear that they have the deepest sympathy for the individuals concerned. They should take the allegations extremely seriously, launch a full investigation and promise to take action as necessary once the investigation is complete. Once the facts have been established and if the organisation is in the wrong, that organisation should make a full and complete apology to the individuals and take any other action as necessary (Hooper, S., Institute of Business Ethics, personal communication, 2003).  
By sharing the ethics and practice of residential care as well as those of the insurance companies some agencies have been able to negotiate the message they wished to convey to survivors in a way which is acceptable to the insurance companies. These are known as ‘agreed statements’. However it has to be acknowledged that at least in some cases survivors find these to be unacceptable and contrived.

Conclusion

All agencies should anticipate the possibility of receiving an allegation of historic abuse. In order that survivors can receive an immediate, genuine and constructive response, policies, procedures and standards documents should include the appropriate response to be given by the practitioner receiving the initial information and by the agency as a whole. This should include how to communicate with the individuals involved as well as with current and past employees, and with other agencies involved in the investigative process.

It would be helpful to involve insurance companies in drawing up such a document.  The deliberations of the SIRCC short life group proved to be very fruitful through the sharing of their experiences and the opportunity to learn from this.

Click www.sircc.strath.ac.uk for further information