Tactics in Child Abuse Claims against the Catholic Church
Personal Injury Focus, September 2006
Child abuse compensation claims are a growing area of personal injury litigation. Many claims are against the Catholic Church, which is said to have had an endemic problem of child abuse for many years. In 2001 the Catholic Church announced sweeping reforms of its child protection policies – reforms which, it predicted, would lead to the Catholic Church becoming a beacon for child protection. Unfortunately, however, this approach has not always been reflected in a reasonable approach to compensation claims. The Catholic Church has a complex legal structure and in a number of cases the Church or its insurers have resorted to technical obstacles and smokescreens in an attempt to evade paying compensation. This article considers some of the main issues peculiar to litigating against the Church.
Where compensation is claimed in respect of child abuse, the claim is usually brought against an institutional defendant as opposed to the abuser in person, who will generally be impecunious. The institutional defendant will typically be the employer of the alleged abuser or an organisation owing a duty of care to the claimant, which becomes aware that the claimant is at risk of suffering harm. The traditional position, however, was that priests were not employed by any earthly organisation, there being no intention to create legal relations. Therefore, the Catholic Church has always argued (although it has never pushed this point to trial) that dioceses do not employ priests and as such have no vicarious liability for their torts (whether those be assaults or negligence in failing to act on available information).
However, recently the House of Lords decided the Scottish case of Percy v Church of Scotland , holding that a former minister's relationship with the Church of Scotland constituted employment for the purposes of the Sex Discrimination Act 1975. The effect of that decision on a personal injuries claim where vicarious liability is alleged has not yet been litigated either side of the border. However, we consider that it would probably be found that the Church is vicariously liable for the acts or omissions of a priest on the basis that it was in a position to control the priest, whatever the niceties of the legal relationship between a priest and his bishop.
STRUCTURE OF THE CHURCH
The Catholic Church is not a single legal entity. Rather, it is divided into legally distinct dioceses, which are presided over by a bishop (some older or more important dioceses are termed archdioceses and presided over by an archbishop, but otherwise an archbishop is not superior to a bishop in most respects) and religious communities. A priest will be attached either to a particular diocese, e.g. Diocese of Leeds, or to a religious community, e.g. the Benedictines. The "employer" of the priest for the purposes of the compensation claim is likely to be either a diocese or a religious community. Both types of body are usually charities. The difficulty which may arise is precisely how the employer should be identified and named for the purposes of proceedings. In other words:
• How to identify the correct diocese/order to sue?
• What is the technical legal title of the defendant?
SOURCES OF INFORMATION
There are a number of useful sources of information regarding the Catholic Church. The Catholic Directory is an annual publication which lists every individual priest in England and Wales and identifies the diocese or order to which the priest is attached. It also contains official information about dioceses and orders e.g. head office addresses. The annual Catholic Directories date back many years. In addition, many dioceses and orders publish annual year books which give more information as to the priests they employ and their (lawful) activities.
IDENTITY OF DEFENDANT
Having established which diocese or order the priest is "employed" by it is necessary to identify the correct technical legal title for that defendant. In the case of a diocese there are two possibilities:-
• The bishop;
• The trustees of the diocese, bearing in mind that the diocese will be a charity.
Bishops and Archbishops
On the face of it some uncertainty exists as to whether a Catholic bishop is a corporation sole and so a legal entity and liable for the acts or omissions of his predecessors. As a matter of Canon law, Catholic bishops are certainly legal entities, but the position in civil law at first glance seems less clear. Halsbury's Laws asserts that a Roman Catholic bishop is not a corporation sole (unlike a Church of England bishop). However, the point has not recently been considered and the authorities cited in support of the proposition were decided when the position of Catholics in England was very different from today, i.e. before the Roman Catholic Relief Act of 1829.
The position was considered by the Court of Appeal in Ireland in 1809 in Attorney-General v Power. A gift had been made by will to "the Most Reverend Dr Thomas Bray, Roman Catholic Archbishop of Cashel and to the Right Reverend Dr John Power, Roman Catholic Bishop of Waterford and Lismore and to their successors for ever in trust". It was held that a bequest to Roman Catholic bishops and their successors is void, no such characters being known to the laws of Ireland. The Lord Chancellor said that: "Such a bequest, by way of endowment of a Roman Catholic School, would by the law of England be deemed void; either as being contrary to the provisions of the statute of Edward VI or as being against public policy".
The position seems next to have been considered in 1893 in Kehoe v The Marquees of Lansdowne, a decision of the Privy Council on appeal from the Court of Appeal in Ireland. It was said therein by Lord Herschel LC "Inasmuch as the Bishop of Kildare was not a corporation sole, it is obvious that the demise contemplated could not legally have effect".
It is noteworthy that this decision makes no reference to the position in England, where the status of Catholics had considerably altered in the intervening period. Catholicism was, of course, unlawful in England for the most part following the Reformation in the 1530s. The Roman Catholic hierarchy was re-established in England in the mid 1800s.
Accordingly, in 1809 (the date of the principle authority relied upon by the editors of Halsbury's) Catholics in England were forbidden from holding any public office and indeed the very office of a Catholic Bishop was contrary to public policy. But the position is entirely different today. It seems, therefore, that the underlying premise behind the statement of the law in Attorney-General v Power no longer exists - the relevant statutes having been repealed and the public policy no longer being current, and that the decision should not be followed today.
Certainly it would be politically unattractive for the Catholic Church to argue that a Catholic bishop has no legal existence. In addition, if a Catholic bishop has no legal existence he cannot, by definition, enter the court record and defend the claim. He would have no legal standing to litigate before the court.
In several cases in which we act the church has accepted that the 'correct defendant' is the trustees of the diocesan trust of the diocese in question. We think that this is legally correct. The issue then becomes one of identifying those trustees. Often the Trustees will have formed a trust company and as such, must file details of directors' names and addresses at Companies House. Dioceses and religious communities are also charities and so must file certain information with the Charities Commission. This includes the identity of the current trustees, whose names and addresses can thereby be identified.
However, the relevant trustees for the purposes of the claim may be the trustees at the material time of the abuse. The identities of trustees of course may change and indeed are very likely to have changed since the material time if the abuse is historic. In a number of cases the Church's solicitors have refused to identify the names and addresses of the trustees at the material time, or have done so only when those trustees are now deceased, and therefore incapable of being served. The purpose of this refusal appears to be to prevent the claimant from effecting service on the relevant defendant. In reality, of course, the precise identity of the trustees is something of a red herring as all trustees, past or present, would have a right of indemnity out of the trust fund which is, of course, controlled by the current trustees. In any event, the trustees are likely to be insured against claims and in reality it is the insurer who is conducting the litigation. The refusal to identify trustees is nothing more than a technical manoeuvre designed to frustrate and obfuscate the claimant's claim.
SERVICE OF PROCEEDINGS
The answer to the service problem is an application for substituted service of proceedings upon either the diocesan head office or the defendant's insurers. We have made several such applications which, have all been granted for the reasons set out in the preceding paragraph.
The claim for personal injuries will, of course, be litigated in the civil courts and be determined in accordance with English civil law, rather than Canon law. However, it can be necessary to consider aspects of Canon law as not only will the diocesan defendant be following (and have followed) that system of regulation, but Canon law can shed useful light on the scope of the duties owed by the diocese to the claimant.
The current (1983) Code of Canon Law was created pursuant to the Second Vatican Council and replaces the earlier 1917 Code. However, it is largely similar to the earlier Code (which may have been in place at the material time) and the current Canons are to be understood as the old ones were and so continuity is to be maintained. The Canons are not always easy to apply to secular problems and use language which will be unfamiliar to many. It is impossible to give full consideration to the entire legal system which is Canon law in an article of this length, but we now set out some Canons of particular relevance to claims arising out of sexual abuse. Reference will, of course, need to be made to the Code of Canon Law itself in many cases so as not to risk taking the Canons out of context.
Priests and all of the faithful are required to show obedience towards their bishop. Canon 381.1 provides "In the diocese entrusted to his care, the diocesan bishop has all the ordinary, proper and immediate power required for the exercise of his pastoral office, except in those matters which the law or a decree of the Supreme Pontiff reserves to the supreme or to some other ecclesiastical authority." Canon 392.1 is more specific: "Since the bishop must defend the unity of the universal Church, he is bound to foster the discipline which is common to the whole Church, and so press for the observance of all ecclesiastical laws."
The diocesan bishop is responsible for his priests. Canon 384 provides that he is to have special concern for the priests, to whom he is to listen as his helpers and counsellors. He is to defend their rights and ensure that they fulfil the obligations proper to their state. Additionally, the bishop must be aware of the affairs of his diocese and must report to the Pope, in writing and personally, on the state of the diocese every five years.
The Code deals specifically with the clerical obligation of celibacy by Canon 277.1. Linked to this is the clerical obligation to avoid participation in any criminal or immoral activity. Canon 285.1 provides that "Clerics are to shun completely everything that is unbecoming to their state, in accordance with particular law."
Questions as to confession frequently arise as victims may "confess" the abuse or the abuser himself may do so to another priest and in negligence claims it will be important to fix the diocesan hierarchy with knowledge of the abuser's propensity. The Church often advances the sanctity of the confession as excusing their failure to act on information revealed therein.
The Code deals with confession in some considerable detail. Canon 979 provides that "In asking questions the priest is to act with prudence and discretion, taking into account the condition and age of the penitent, and he is to refrain from enquiring the name of a partner in sin."
Of perhaps greater controversy is the sanctity of the confession, which has been the subject of much popular culture. Canon 983.1 provides that "The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion." Accordingly, it is clear that, accordingly to Canon law, a priest is strictly forbidden from revealing anything the penitent may have disclosed to him. Even the penitent cannot release the priest from this obligation and so the sanctity is not akin to legal professional privilege, which can be waived. Severe penalties are imposed for violation of this Canon.
However, the relationship of priest and penitent is probably not one to which privilege attaches according to English law, although it does in some other jurisdictions. We consider that where a priest becomes aware that someone has a propensity to sexually abuse children, his duties to maintain confidentiality under Canon law would not have the effect of displacing his obligations to take reasonable care for a child parishioner's safety under English civil law. The obligations imposed by the common law are not ones which representatives of the Church are free to disregard simply because they conflict with the Church's own scheme for its internal regulation. Accordingly, it is considered that a failure to act on information obtained during confession would be negligent. However, whilst the point has been debated in many statements of case, it has not been judicially determined and has never been conceded by the Church.
A few years ago there was much publicity surrounding a document entitled "Instruction on the Manner of Proceeding in Cases of Solicitation", which was said to be instruction to clergy to keep secret matters relating to sexual abuse of children. Space does not permit a detailed consideration of this complicated document in this article, but insofar as this document does provide for secrecy, the same arguments as above would apply.
Where the claim is based on negligence it will be necessary to prove that the Church knew of the abuse, or the risk posed by the abuser, or at least ought to have suspected it and taken appropriate measures to protect the child victim. Historically (as the Church has now acknowledged) it has often dealt with allegations of abuse by hushing them up and moving the paedophile priest to another parish – where he abuses again.
The Catholic Directory can disclose tell tale signs that a priest has been in trouble. If a priest's entry is tracked through successive years of the Catholic Directory, it is sometimes found that his name mysteriously disappears from the Directory in particular years. This may be an editing error, but sometimes it can be indicative that a priest has been taken 'out of circulation' for treatment purposes or to lie low until the embarrassment of an allegation has faded.
Relevant matters may also be recorded on the priest's personnel file, which is clearly disclosable. In addition, the issue may have been referred to in other diocesan files and it is important to check, if necessary by means of a specific disclosure application, that a proper search has been conducted of all relevant files including, for example, the bishop's correspondence files.
In our experience it is as well to treat with scepticism claims on the part of Catholic Church defendants that documents relevant to the claim have disappeared and cannot be traced. We believe that the Church has been far more accustomed than other large institutions to preserving and archiving documents.
Further and intriguingly, Canon 489 provides "there is also to be a secret archive, or at least in the ordinary archive there is to be a safe or cabinet, which is securely closed and bolted and which cannot be removed. In this archive documents which are to be kept under secrecy are to be most carefully guarded." Canon law forbids any documents to be removed from the secret archive under any circumstances and only the bishop is permitted to have the key thereto. Accordingly, as only the bishop will know what is in the secret archive, it is obviously unsatisfactory for anyone else to make the disclosure statement.
Among the documents which must be kept in the secret archive for varying periods of time are:
• Documents from historic criminal cases [i.e. within Canon law] concerning matters of a moral nature;
• Documentary proof of canonical warnings or corrections when someone has been about to commit an offence, or is suspected of having committed one, or has been guilty of scandalous behaviour;
• Documents relating to preliminary investigations for a penal process that was closed without a formal trial; and
• Documents relating to any other matters the bishop considers secret.
If the contents of the secret archive are not relied on by the diocese and do not adversely affect its case or support the claimant's case, then the documents will, of course, not fall within the ambit of standard disclosure under CPR 31.6 in any event. If the documents are relevant the diocese may contend that, pursuant to CPR 31.3(2), inspection can be refused on the ground that it would be disproportionate. However, it is hard to see why the normal principles governing disclosure should not apply and, in appropriate cases, it may be necessary to press for disclosure of documents contained within the secret archives as they may contain crucial evidence. However, the District Judge is unlikely to sanction a fishing expedition just because Dan Brown has aroused your curiosity!
It is regrettable that the Catholic Church or its insurers should publicly indicate a willingness to address the problem of sexual abuse by clergy and yet resort to legal loop holes and smoke screens in order to attempt to evade claims. Nonetheless, experience shows that, whilst such claims are often time consuming and difficult, it is possible successfully to navigate through the minefields particular to these claims. However, practitioners must recognise that the Catholic Church has its own laws, customs, language and approach to matters. Just as one must be familiar with aspects of cardiology to conduct clinical negligence claims against heart surgeons, a familiarity with Canon law and the Church's history and customs will be a valuable asset when dealing with claims against the Church. After all, you can be sure that the defendant will be very well acquainted with the topic!