From Advocate Timothy Hanson and Stuart Geach, associate, Hanson Renouf.
THERE will be few readers who are not aware of the allegations of abuse of children while in the care of the States of Jersey, including those who passed through Haut de la Garenne.

Aside from any criminal proceedings that may result from the investigation, it is possible that victims of abuse will consider legal action directly against their abusers and also against the States of Jersey.

Will the fact that the alleged abuse occurred many years ago prevent victims from bringing civil proceedings?

An article in the JEP recently reported one legal opinion that this might indeed be the case. However, it is our view that victims need to talk in detail to a lawyer before deciding what to do, because their own individual circumstances will vary. Victims might still be able to make a claim even now.

In Jersey most civil legal actions must be commenced within a certain specified time period. The Law Reform (Miscellaneous Provisions) (Jersey) Law 1960 states that actions founded on tort (which would include sexual or physical assaults) must be brought within a period of three years from the date on which the action occurred. In default, a claim may be barred if an objection is taken to it being out of time or ‘prescribed’.

That basic time period, however, will not run in various situations, for example, while the victim was a minor. Until the Age of Majority (Jersey) Law 1999 this was 20, when it was then reduced to 18. However, even when the age of majority has been attained, a practical impossibility in commencing legal proceedings (such as where a person is ignorant of the facts giving rise to the cause of action, and such ignorance is objectively reasonable) may prevent time from running against a victim.

In essence, the range of possible impediments is wide. Difficulty in recalling or facing up to the reality of traumatic events (a common feature of ‘dissociative amnesia’) arguably might extend time from running against victims for some considerable period. Equally, where current investigations uncover previously unknown breaches of duty (for instance committed by States’ committees), these might still be actionable by victims.

However, some victims who do not fall within such exceptions may be unable to claim compensation in the civil courts for wrongs committed against them long ago. For those victims, the Jersey Criminal Injuries Compensation Board might be worth exploring (although this applies only to criminal acts after 1 May 1991).

Otherwise, it would seem that their only option is to hope that in any successful criminal prosecution, the Royal Court will include in its sentence a compensation order to that victim.

The time for reconsidering Jersey’s law as to when claims may be brought clearly arises now, not only because of the victims of abuse who are coming forward, but also because of two other events.

The Jersey Law Commission has recently issued an important consultation paper (No 1/2008/CP) on the subject in which reform is urged, and in England at the beginning of this year the House of Lords in A v Iorworth Hoare (2008) UKHL 6 radically improved the ability of victims there to commence legal proceedings.

Even a few miles away in France, a period of 20 years applies to abuse claims. Isn’t it about time that Jersey reconsidered its position?
Hopefully, Jersey’s politicians can be relied upon to do the right thing, rather than have victims of abuse pinning their hopes on our excellent judges, who often have to advance our law because the States have failed to act.
Regency House,
Regent Road,
St Helier.