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Criminal injuries compensation for abused children

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300                                                                                                       LEADING ARTICLE

Compensation                                                                               maximum (£250 000). Within each
.......................................................................................    category of designated injury, there
                                                                                           are subdivisions, depending on the

Criminal injuries compensation for
                                                                                           severity of that injury, and there is
                                                                                           also provision in the scheme to create

abused children
                                                                                           and add new categories. Table 1 gives
                                                                                           some examples.
                                                                                              In the event of more serious but
N Sugarman, T J David                                                                      separate multiple injuries the applicant
                                                                                           will receive the tariff amount for the
...................................................................................
                                                                                           highest rated description of injury plus
                                                                                           30% of the tariff amount for the second
An introduction to the topic of compensation for children who                              highest rated injury, and where appro-
have been physically or psychologically abused                                             priate an additional 15% of the tariff
                                                                                           amount for the third highest rated
                                                                                           description of injury.

D
      iscretionary schemes to compen-        Mental injury or disease can result
      sate the victims of violent crime      directly from physical injury or from a          Over and above the tariff, if the
      have been in place in Great Britain    sexual offence, or may occur without          applicant has lost earnings or earning
since 1964. The original framework           physical injury.                              capacity for longer than 28 weeks com-
provided that compensation would be             It is not necessary for there to be a      pensation can be awarded. This will
awarded on a ‘‘common law basis’’            conviction against the offender, or pro-      apply in the case of children if it can be
whereby awards were assessed in              secution, for an award to be made.            shown that it is likely that earning
exactly the same way as if being made           The injury must have been sustained        potential has been lost. In addition is
by a court—that is, adhering to princi-      in Great Britain. This includes on a          what is known as the element of
ples of restitution, seeking to put the      British aircraft, hovercraft, or ship, on a   compensation for special expenses.
victim back, so far as possible, into the    lighthouse off the coast of Great Britain,    These can be in the nature of physical
same position that they would have           and part of the channel tunnel. If the        aids and treatment costs, special equip-
enjoyed had the crime and the injury         injury was sustained in Northern              ment, adaptations to accommodation
not occurred. Apart from compensation        Ireland, a different scheme applies (see      the cost of care, and finally Court of
for the actual injuries, awards would        final section).                               Protection costs.
therefore also include full and future                                                        In serious cases, care is usually by far
care costs, provision of therapies, equip-   TIME LIMITS                                   the largest single item in this part of the
ment, transport needs, special accom-        The general rule is that the application      claim. The cost of care being provided at
modation, loss of earnings, and future       must be made within two years of the          home by a relative or friend can be
earnings. There was no limit on an           date of the incident.1 The time limit may     assessed by reference to a commercial
award and each case would be assessed        be waived where this is considered to be      basis or by comparison with the loss of
on its individual merits.                    reasonable and in the interests of            earnings, if any, suffered by the carer;
                                             justice, and this is normally what            there is a formula for this to be
THE CRIMINAL INJURIES                        happens in the case of a child who has        calculated into the future. However,
COMPENSATION SCHEME                          been abused.                                  the CICA is required to reduce the award
In 1996, a statutory scheme (the                                                           to take account of social security or
Criminal      Injuries     Compensation      BURDEN OF PROOF                               other state benefits, or indeed a claims
Scheme 1996) was introduced under            It is for the applicant to satisfy the CICA   officer may withhold payment if it is felt
the provisions of the Criminal Injuries      on the normal civil burden of proof, the      that benefits may become available or
Compensation Act 1995 to replace the         balance of probability, that the injury       should have been claimed. Another
earlier discretionary ones, with awards      resulted from a crime of violence. In         provision of the scheme is that compen-
for pain and suffering to be made on a       many cases the evidence will be fairly        sation for special expenses will not be
tariff basis with a limit of £250 000 for    clear. However, other more complex            paid in respect of anything that is
catastrophic injury and an overall limit     circumstances of non-accidental injury        provided by or available free of charge
of £500 000 in total, inclusive of care      will give rise to the need for the            from the National Health Service, local
needs, loss of earnings, etc. The scheme     submission of detailed medical evidence       authorities, or other agencies. What is
was revised slightly in 2001, and is now     to deal with causation issues.                available can be difficult to ascertain
administered by the Criminal Injuries           Awards can be withheld or reduced if       because provisions by local agencies
Compensation Authority (CICA).               the victim provoked or failed to report       vary considerably from area to area
                                             the incident or fails to cooperate with       and depend on the special needs of the
ELIGIBILITY                                  the authorities at the time or afterwards.    particular individual and on his or her
Compensation may be paid to an appli-        In addition the character of the appli-       circumstances. Moreover local authori-
cant who has sustained a criminal            cant as shown by any criminal convic-         ties can provide a clear statement of
injury after 1 August 1964. If the victim    tions can be taken into account in            available provision only after an indivi-
has since died, payment can be made to       exercising discretion to refuse an award      dual assessment. Unless this covers
a qualifying dependant claimant.             or reduce it. Although unlikely to affect     explicitly all that has been included in
  A criminal injury is defined as a          children, these considerations may be         the application for special expenses, the
personal injury directly attributable to     relevant in cases involving adolescents.      CICA may ask for further information or
a crime of violence. Personal injury                                                       clarification. An additional complication
includes physical (incorporating fatal)      AMOUNT OF AWARD                               is that local agencies’ policies on char-
injury, mental injury (being a temporary     The starting point is the Tariff of           ging for services are not uniform. While
mental anxiety, medically verified, or a     Injuries. These are graded in levels, with    provision for children with special needs
disabling mental illness confirmed by        Level 1 representing the minimum award        is most often free, in some cases a flat
psychiatric diagnosis), and disease.         (£1000) and Level 25 representing the         rate charge may be made, and in others



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LEADING ARTICLE                                                                                                                                    301



   Table 1 Examples of some different levels of awards                                                       There are provisions which enable pay-
                                                                                                             ment of the reasonable expenses of the
    Physical abuse of children                                                                               applicant or persons attending to give
    Minor abuse                                                                      Level 1      £1000      evidence at a hearing, which anticipates
    (e.g. isolated or intermittent assault(s) resulting in weals, hair pulled from
    scalp, etc)
                                                                                                             medical experts. Legal aid is not, and
                                                                                                             never has been, available for tribunal
    Serious abuse                                                                    Level 5      £2000      cases of this nature.
    (e.g. intermittent physical assaults resulting in accumulation of healed
    wounds, burns, or scalds but with no appreciable disfigurement)                                             As in any other form of claim, it is not
                                                                                                             strictly necessary to have legal represen-
    Severe abuse                                                                     Level 10     £5500
    (e.g. persistent pattern of repetitive violence resulting in moderate multiple
                                                                                                             tation. However, it may be extremely
    injuries such as bruising and minor fractures and/or minor disfigurement)                                difficult for the layman to present the
                                                                                                             claim without having an in depth
    Severe abuse                                                                     Level 12     £8200
    (e.g. persistent pattern of repetitive violence resulting in significant                                 understanding of the detailed workings
    multiple injuries)                                                                                       of the scheme and knowing where and
    Severe abuse                                                                     Level 14     £13 500
                                                                                                             how to respond to the CICA in relation
    (e.g. persistent pattern of repetitive violence resulting in severe multiple                             to the evidence, the level of award, its
    injuries)                                                                                                timescales, and procedures.
    Brain damage—impairment of social/intellectual functions                                                    The basis of charging must, of neces-
    Minor brain damage                                                               Level   12   £8200      sity be a matter for agreement between
    Moderate brain damage                                                            Level   15   £16 500    the legal representative and the appli-
    Serious brain damage                                                             Level   20   £44 000    cant or those charged with his or her
    Very serious brain damage                                                        Level   23   £110 000
    Extremely serious brain damage                                                   Level   25   £250 000   care. There are different bases available,
    (i.e. no effective control of bodily functions)                                                          including payment by reference to the
                                                                                                             time spent and degree of responsibility,
                                                                                                             or alternatively on a contingency (‘‘no
                                                                                                             win, no fee’’) basis by reference to the
the charge may depend upon the par-                         number of applicants have brought allega-        degree of success. In cases involving
ents’ financial circumstances.                              tions against the same abuser, the CICA          children, the compensation will fall
                                                            may be willing to deal with the applicants       under the ultimate control of the Court
                                                                                                             of Protection, which will ensure that an
MENTAL INJURY                                               in a group. In these circumstances there
                                                            may be corroborating evidence in the             independent assessment of fees is car-
So far as non-physical injuries or inju-
                                                            police files which may assist the CICA in        ried out by a court officer and verified
ries with a ‘‘mental’’ element are con-
                                                            reaching its decisions.                          before payment.
cerned, the tariff contains a fairly wide
variety of categories. These range from                        The CICA has wide powers on receipt              In terms of who has responsibility,
‘‘disabling but temporary mental anxi-                      of an application to make enquiries. If          this might rest with a parent or local
ety, lasting more than six weeks, medi-                     discrepancies or issues arise, it can make       authority, or ultimately with an adop-
cally verified’’, to ‘‘more prolonged but                   further enquiries of the applicant, and it       tive parent. The scheme goes to some
not permanent disabling mental illness,                     can delay the consideration of the               lengths to ensure that if the assailant
confirmed by psychiatric diagnosis’’.                       application if the applicant’s medical           was a parent or family member they
Post-traumatic stress disorder and per-                     prognosis is unclear. The CICA can also          should in no way benefit from the award.
manent mental illness, either moder-                        require the applicant to submit to a             Particularly in serious cases, where a
ately or seriously disabling, are taken                     medical examination.                             local authority has responsibility for a
into account, together with psychologi-                        There are two steps in the decision           child in care or foster care, the social
cal symptoms such as anxiety, tension,                      making process. The first is whether the         services department or indeed the legal
and insomnia. These must be medically                       injury was the result of a crime of vio-         department may lack the specialist
verified, that is to say diagnosed by a                     lence, and whether the applicant com-            experience to handle these claims.
registered medical practitioner. A psy-                     plied with the rules relating to reporting          Where a child has been adopted, the
chiatric diagnosis and prognosis must                       the injury (for example, the injury must         adoptive parents are very often left to
have been diagnosed or made by a                            have been reported to the police).               fend for themselves in continuing with
psychiatrist or clinical psychologist. The                  Having established that the applicant is         the claim with little or no guidance, and
award tariff varies depending on the                        eligible for an award, the second step is        it can then be a matter of luck whether
period during which it is assessed that                     to determine the amount of the award.            they find their way to appropriately
the condition is ‘‘disabling’’. Notably,                       The applicant may, if dissatisfied with       qualified advisers.
there is also provision for awards to be                    the decision made, make an application
made in respect of conditions that                          for a review of that decision. Ultimately        INVESTMENT OF AWARDS
embrace both physical and psychologi-                       there is a right of appeal to the Criminal       Small or modest awards can be released
cal injury, for example, infection with                     Injuries Compensation Appeals Panel.             to those with parental responsibility or
HIV/AIDS, loss of fetus, and a range of                     There is no right of appeal against the          held in Trust. However substantial
conditions caused by sexual abuse.                          Panel’s decision other than to the courts        awards made to a child are likely to
                                                            by way of judicial review should there           come under the control of the Court of
CLAIM PROCEDURE                                             be grounds for challenging any proce-            Protection. The court will require the
The claim is made by way of an application                  dural deficiencies in the decision mak-          appointment of a Receiver to administer
form. On receipt, the CICA will write to the                ing process or errors of law.                    the funds. The Receiver can be a profes-
police, medical authorities, and any other                                                                   sional or more commonly a family
relevant authority to verify the basic                      FUNDING AND LEGAL                                member if there is someone suitable
details. The police will be asked to confirm                REPRESENTATION                                   available. For the largest awards, con-
that the injury was reported to them, and                   The scheme expressly excludes pay-               sideration will often be given to the pos-
whether in their view it was attributable                   ment for any cost of representation in           sibility of a Structured Settlement. This
to a crime of violence. In cases where a                    addition to the award of compensation.           is an arrangement whereby an amount



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302                                                                                                               LEADING ARTICLE

of money will always be retained and            agree that an expert report is required,         There are, however, limits to the pay-
invested conventionally on behalf of the        then the CICA will pay for the costs of the      ments, and in cases of severe injuries they
child, but a proportion of the award will       report (unless an applicant selects a            can be at a lower level than for individuals
be used by the CICA to purchase a series        particularly costly expert, in which case        who have been injured in a motor
of annuities on behalf of the child which       the CICA may only meet part of the costs).       accident, in which the driver is insured
will result in a guaranteed, lifetime,                                                           and able to meet an award of unlimited
index linked income. By concession              THE ROLE OF THE PAEDIATRICIAN                    damages. Therefore it is beneficial to the
with the Inland Revenue, the income             It is vital that paediatricians go out of        victim for a claim of criminal injuries
from the annuities is tax free in the           their way to provide the necessary               compensation to be concluded as soon as
recipient’s hands, compared to income           details at all stages of the claims process,     possible and paediatricians may be able to
from the conventional investments, so it        indicating not just the medical diagnosis        assist in this.
can be an attractive proposition.               (for example, ‘‘spastic quadriplegia’’)             An introductory guide for potential
                                                but also the functional impact on the            applicants, a full guide to the scheme, a
                                                                                                 special supplement for cases of child
NON-ACCIDENTAL HEAD INJURY                      child. As most of the CICA staff have no
                                                medical background, it is essential that         abuse, and an application form, are all
In some cases, very severe neurological
                                                medical information is provided in a             available from the Criminal Injuries
damage, and a very poor prognosis, are
                                                way that is easily comprehended.                 Compensation Authority, Tay House,
evident at an early stage. However, there
                                                   The scheme suffers from a low profile.        300 Bath Street, Glasgow G2 4LN, UK;
is a large subset of cases in which the
                                                A danger is that each agency thinks that         tel: 0141-331-2726, fax: 0141-3331-
evolution of neurological damage may
                                                another is providing direction. It would         2287, www.cica.gov.uk. For injuries that
take a number of years to become evident.
                                                be reasonable, therefore, for a paedia-          occurred in Northern Ireland, further
For example, in a long term follow up
                                                trician to remind the parents, carers, or        information is available from The
study (mean duration of follow up seven
                                                guardians of abused children that com-           Compensation Agency, Royston House,
years) of 13 infants (mean age
                                                pensation may be obtainable for the              34 Upper Queen Street, Belfast BT1 6FD,
5.5 months) with shaken baby syndrome
                                                child’s injuries.                                Northern Ireland; tel: 028-9024-9944,
injuries, the full clinical appearance of
                                                   Regarding the preparation of reports          www.compensationni.gov.uk.
neurological deficits due to interruption
of brain growth took up to four months to       for the scheme, there are three practical        Arch Dis Child 2004;89:300–302.
appear.2 It took 6–12 months for the            points. These are:                               doi: 10.1136/adc.2003.011254
appearance of lesions of the central
nervous system long pathways, up to 2           N   Be careful to identify other, supple-
                                                    mental injuries. Additional awards
                                                                                                 ..................
years for the appearance of epilepsy, and                                                        Authors’ affiliations
3–6 years for behavioural and neuropsy-             can be made where there is more              N Sugarman, Graham Leigh Pfeffer & Co.,
                                                    than one definable injury.                   Solicitors, Maple House, Haymarket Street,
chological signs to appear. The authors of
this study concluded that in infants who        N   If the prognosis is that of a permanent
                                                    injury, or alternatively it is in some way
                                                                                                 Bury BL9 0AR, UK
                                                                                                 T J David, University of Manchester, UK
had been injured in this way it was
impossible to formulate a precise and               uncertain, state this clearly. This may
final neurological prognosis before the             well help to avoid a figure from the         Correspondence to: Professor T J David, Booth
                                                    wrong category being awarded, and            Hall Children’s Hospital, Charlestown Road,
age of 6 years or later. It is self evident                                                      Blackley, Manchester M9 7AA, UK;
that the delays in establishing the prog-           may reduce the risk of an inappropri-        t.david@netcomuk.co.uk
nosis in such cases are bound to lead to            ately over-optimistic view of the inju-
delays in agreeing an appropriate level of          ries being made by the CICA.
                                                                                                 REFERENCES
compensation.                                   N   Respond promptly to requests for
                                                    reports or information by the CICA.           1 Gumbel EA, Johnson M, Scorer R. Child abuse
   There is no ‘‘fast track’’ for children or
                                                                                                    compensation claims. A practitioner’s guide.
for particularly serious cases. The prog-                                                           London: The Law Society, 2002.
nosis in some cases of non-accidental                                                             2 Bonnier C, Nassogne MC, Evrard P. Outcome
head injury can be particularly complex to      CONCLUSIONS                                         and prognosis of whiplash shaken infant
                                                                                                    syndrome; late consequences after a symptom-
determine, and in such cases an expert          The state pays compensation for injuries            free interval. Dev Med Child Neurol
report will be needed. Where the CICA           to blameless victims of violent crime.              1995;37:943–56.




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                                  Criminal injuries compensation for abused
                                  children
                                  N Sugarman and T J David

                                  Arch Dis Child 2004 89: 300-302
                                  doi: 10.1136/adc.2002.011254


                                  Updated information and services can be found at:
                                  http://adc.bmj.com/content/89/4/300.full.html




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