Howe & Co were instructed by BS to pursue a claim for Judicial Review against the Secretary of State for the Home Department following a considerable period of detention. The Claimant was a victim of torture, whilst detained in India including sexual assault.  The Home Office accepted this was true, but refused the asylum claim on the basis of internal relocation. A rule 35 report also concluded the Claimant was a victim of torture, and so he was identified as a level 2 vulnerable person.

The Defendant was aware that the Claimant would not be retuned to India without a travel document. In December 2016, they became aware that this document would not be available for some time. This was not appreciated by the reviews of detention until the 26 January 2017, when this was realised the Claimant was immediately released from detention.

Following an order for disclosure a number of additional documents were disclosed, this continued over a length period of time, right to the day before hearing. At the hearing Deputy High Court Judge Mr Thomas QC determined that the Defendant had been unable to justify 38 days of detention and as such the Judicial Review was allowed.

Adam Tear appeared for the Claimant at permission, the full hearing and judgement with Christopher Jacobs of Landmark Chambers appearing for the full hearing.

http://www.bailii.org/ew/cases/EWHC/Admin/2018/454.html

The Independent Inquiry into Child Sexual Abuse (IICSA) commenced its investigation into the Anglican Church on Monday the 5th of March, following its hearings into the Roman Catholic Church in December 2017.
​
David Enright (head of Howe & Co Solicitors Public Inquiry team) and Sam Stein QC represent a number of survivors of abuse by monks of the English Benedictine Congregation (EBC), the Comboni Missionaries and the Christian Brothers, who were Core Participants in the Investigation.
 
Parallels between Anglican and Catholic Church
The similarities between the recent Catholic Church hearing and the current Anglican one are numerous. The Catholic Church’s official media outlet, The Tablet, reported that as of August 2014, the number of Anglican Priests who had become Catholic Priests stood at 400; and now represent 10% of Catholic Priests in all of England and Wales.

The IICSA’s “Scope” of the Anglican Church Investigation and the Catholic Church Investigation are identical in large part. The parallels between the two churches and two investigations are obvious. 
Below is an account of the three weeks of the Roman Catholic Hearings of the IICSA at which we represented a large group of core participant survivors. The evidence was deeply disturbing and revealing. The early reports from the current and ongoing IICSA Anglican Church hearings indicate that strikingly similar issues will arise.

​During this hearing we heard of dark passageways leading to a secret room, police officers informed that monks had connections with VIPs, monks representing a potential danger to children kept at a monastery on school grounds, brown envelopes of complaints kept away from investigators, Abbots who apparently obstruct investigations by the police and who seek to keep back material about abusers. Also a past Abbot President of the EBC, Richard Yeo, who preferred the flawed wisdom of an Abbess who, on being asked to shelter a suspected abuser stated she did not want to know the details as she trusts the monk concerned.
Throughout the hearings the evidence pointed very strongly to a policy of “Church First” in cases of child abuse and how it was reported, investigated and responded to.
While we awaited the start of the Catholic Church public hearing we heard daily in the news of the trial and subsequent conviction of a “sadistic” former abbot who sexually abused young boys in the 1970s and 80s. Andrew Soper, 74, the former Ealing Abbot at St Benedict's School, was found guilty of 19 charges of indecent assault and buggery on December 6. St Benedict’s is another EBC school.
There appear to be many issues which underlie the prevalence of abuse within the Roman Catholic Church, and all of these have been addressed many times before. We are also all aware that the literal cradle to grave coverage of the Church, and its 2000 year history, compels the laity to treat priests and monks with greater respect or deference than we would anyone else.
 
In fact their very status in society would tend to mean for most of us that they should be held to a higher standard and show us the way. But respect must be earned and for the English Benedictine and the Roman Catholic Church from what we have seen in the IICSA’s three weeks of investigation there is a  long way to go until respect can be their due again.
 
One of the problems with the Roman Catholic Church is its inflexibility and resistance to change caused by the lack of governance and line management. Of course there are many other difficulties caused by the confessional rules, inherent misogyny and other issues.
 
Father Paul Smith, current president of the Conference of Religious, which is a gathering of Religious Superiors, in his statement read on the 28th November 2017 said that “….the Conference of the Religious has no power over any Congregation of its independent leadership in any matter pertaining to their internal leadership”. Then later “….the Conference of the Religious does not have any regulatory powers over its membership” [p.24].
 
Dom Richard Yeo (recent former president of the English Benedictine Congregation) in his evidence described the EBC in the following way:
 
“Among the Benedictines, the basic unit is not the order as whole. The basic unit is the individual monastery and rather than having an order divided into provinces, you have monasteries which group together into congregations….I wouldn’t say they operate under the Abbot President. They operate and the Abbot President attempts to assist those monasteries where appropriate and where possible”
 
In our questioning of Abbot Yeo on the 28 November 2017 we learnt that the survivors of the abuse by monks at Fort Augustus, which included one of our clients, are due to be getting some compensation from the money gifted to the EBC flowing from the closure and sale of Fort Augustus. In his evidence it was made clear that the EBC recognises it has a moral, but not an actual or legal responsibility, to the survivors of child abuse by the paedophile monks at the now closed Fort Augustus.
 
But what of the survivors of abuse by the paedophile monks at Downside or Ampleforth or St Benedict’s Abbeys? Because of the claimed-for autonomy of the Monasteries nothing has been done by the EBC or the Roman Catholic Church to set up a fund or redress scheme for them.
 
Post-Nolan and Cumberledge
 
The National Catholic Safeguarding Commission and CSAS (previously COPCA) were put in place as a result of the Nolan Report and then Cumberledge. But if the culture and the type of men involved have not changed then all the systems and guidance in the world will not change them.  
 
Mrs Eileen Shearer gave her evidence on the 30th of November 2017, former director of COPCA, a professional social worker with 37 years’ experience and for many years a manager and supervisor.
 
Mrs Shearer’s view was clearly expressed when she said:
 
“Priority seemed to be given, often, too often, to protecting the institution from open scandal and to dealing with things in-house, a mistrust of the statutory authorities and there seemed to be a lack of awareness of their own lack of knowledge in a way so that they were not open to acting on advice or receiving training and development. And a preference to acting locally. There is often a reference in the evidence I have read about the fact that the child protection polices nationally were not mandatory, which was not the intention, I believe of Lord Nolan…”
 
A Mr Molesworth gave his evidence on the 1st of December. He holds a master of science in Social Work, and is a child care social worker with huge experience of safeguarding. In his evidence he referred to other matters but perhaps most memorably he said that of Piers Grant Ferris, a paedophile monk, that in his view “we had four abbots who knew about his behaviour from 1975” and that they “didn’t get safeguarding, they didn’t get child protection”. This was despite the fact that Father Wright had commissioned the Mann’s (experienced psychologists) to do risk assessment and it was a “classic example of you need to take action, you need to take action now…..but for reasons I don’t understand he chose to ignore them”.
 
Three months into his work at Ampleforth Abbey Mr. Molesworth was motivated to write:
 
“Stepping further back, I find myself questioning whether the community has either the mechanisms, the understanding or even a basic willingness ….. To properly deal with child protection matters……”
 
How did Mr. Molesworth summarise matters? He said:
 
“There was no external accountability, no sanctions, a complex legal framework” and later he conclude by saying “a lack of effective oversight”
 
Former Detective Superintendent Honeysett give evidence on the 4th of December 2017 and put the matters in the following way that he:
 
“didn’t think that Abbot Timothy was applying the principle of Nolan as we understood them….The fact was that children were at risk because two priests were still in and around the school or the communities there weren’t proper risk measures in place and in terms of the principle of paramountcy for child welfare was not to the fore; that much of what Abbot Timothy was talking about in relation to the priests was about their rights and about looking after themselves..”
 
Jane Dziadulewicz who gave evidence on the 6th of December 2017 is a safeguarding consultant with over 30 years’ experience with many years of work as a child protection social worker and senior social worker for Local Authorities and London boroughs. She worked at the Clifton diocese not long after COPCA had been set up. This was the witness who was surprised by the hidden room which as she said:
 
“our suspicions were raised as why in such an opulent environment would two or three individuals wish to go down a concrete flight of steps through a dimly lit room have a key that other people did’ have access to and have two or three armchairs seated opposite a TV screen”
 
It is important to remember that Ms. Dziadulewicz was speaking from a much broader experience of the Catholic Church than just these two schools and that is what the IICSA is all about not just the EBC and from that perspective she, in summary, said:
 

• There is a huge problem with accountability.

 

• There needs to be some way of making religious and bishops accountable. I think if you don’t do that things aren’t going to change.

 

• There needs to be some kind of body that holds the church accountable. There is nothing. The church ultimately doesn’t have to do these things if they don’t want to.

 

• If nothing happens, once the inquiry is over the church can continue in the way that its continued for years and so people can  - will be able to access the services that the church has offered to children  and families for years and the same problems will arise again where offenders will be able to target children and abuse again.

 
The former first lay head of Downside Abbey School, Dr. James Whitehead, summarised the issues in the following way on the 7th of December:
 
“Accountability is the fundamental problem. The members of the monastic community are not accountable unless they commit a criminal offence, obviously. But they are not accountable to anyone…..I think that the points that were made in terms of the mandatory reporting I think are good ones and I think that the testimony that was given yesterday arguing for a body which oversees more accountability within this area, I think, I would fully support”
 
The evidence seen and heard by the Inquiry strongly indicated that Dr Whitehead was removed from his position as head of Downside as a result of his determination to improve safeguarding at Downside and to remove safeguarding from the control of the Abbey and its monks.
 
Detective Constable White suggested there should be a:
 
“Team to oversee religious sectors, to look at and deal with these” and he said “as much as we talk about the offenders in this and the suspects in this, there was clearly, over time, people that had knowledge of what happened. There is no repercussions on them at all”. He continued “we have the laws in place to prevent the incidents happening but it is about a way of trying to enforce the safeguarding and protection of the vulnerable and children that are the victims of these accounts.”
 
Adrian Child, another highly experienced social worker in the area of child protection gave evidence on the 13th of December and said:
“There is nothing mandatory and nothing enforceable, there is no accountability within safeguarding in the Catholic Church It is all on a goodwill basis”
He went on to say:
 
 “They haven’t got it right and that’s in a 15 year period. So I don’t see any value in tinkering around the edges……I think there needs to be accountability in some kind of mandatory requirement”.
 
Father Aiden Bellenger’s comment in a letter is worthy of mention before moving on (he gave evidence on the 11th of December), he said: “At the heart of the darkness in the community is the issue of child abuse which was tolerated by all my predecessors as abbot” in this letter he also refers to what he called the attempt by Dom Richard Yeo, the former Abbot President of the EBC, to protect paedophile monks.
 
Survivors put it the following way:
 
“It really hurt that I have had to listen to the old boy network trash what I had been through…..There is a lot of anger out there about what happened in their communities, there is a lot of anger to the victims. There is a lot of anger to people like the safeguarding professionals and the police. These old boys and parents of children in the school should be grateful to these people. It is the police and the safeguarding that have made these children safer, not the men running these schools I believe you need third parties overseeing this and that safeguarding should be mandatory”
 
Another survivor said:
“Just to say that I hope this leads to something. I see on the Downside website that they have – they are declaring that they are welcoming the chance to scrutinise. Part of me thinks “well of course they would say that, because they are being hauled in front of an independent inquiry”. I just don’t want there to be just another raft of apologies”.
 
Conclusions
So what can we conclude from the first of the IICSA hearings into the Roman Catholic Church? The answer will not be found within the church as there is no evidence of any internal movement or desire to change its management and governance.
In fact the evidence was that the Church continues to cling to its historic structures  in which senior members of the Religious communities in the monasteries and abbeys are autonomous structures run as independent fiefdoms of the Abbots and Abbesses, in the same way that within a diocese a Bishop rules supreme.
For Safeguarding and Child protection to have a chance of being effective within the Church we have argued that the IICSA must recommend that safeguarding is removed from the Church and put it into the hands of an entirely independent ‘non church’ body. This must be accompanied by mandatory reporting which will then be monitored, regulated and overseen by the new regulator. The funding for this will need to be paid for by the Church.  
In the coming weeks the IICSA will hearing disturbing evidence of child abuse and cover up in the Anglican Church.
It is and will remain our position that in every institution in the UK, including the Churches, the bottom line must not be Church first, but children first.

​The full report is here:
https://www.iicsa.org.uk/keydocuments/4265/view/Child%20Migration%20Programmes%20Investigation%20Report%20March%202018.pdf
 
The IICSA report is quite critical of Her Majesty’s Government (HMG) and focuses on the policy of allowing children to be sent to Australia, New Zealand and Zimbabwe, where many were subjected to physical and sexual abuse and little if anything was done to protect them.
 
Most importantly, the primary recommendation is that there should be a financial redress scheme established and that redress should be paid urgently and within a year, as many survivors are now very elderly.
 
Howe & Co represents a very large proportion of the victim and survivor core participant in the IICSA. We have been pressing the Inquiry since March 2017 to make recommendations on reparations for survivors on an urgent basis, given the age of many victims and survivors.
 
The IICSA Child Migration Investigation Report recommendations are:
 
Recommendation 1: Financial redress
 
1. HMG was, over many years, the institution primarily responsible for the post-War child migration programmes: it established the legal framework within which the sending institutions operated, it provided essential funding, it facilitated relations with overseas Governments and it operated, to a very limited degree, a system of regulation and oversight.
 
2. However we have found that post-War child migration was a fundamentally flawed policy, and that HMG failed to ensure that there were in place sufficient measures to protect children from sexual abuse (as well as other forms of abuse and neglect). Thus the children were placed in environments where they were exposed to a range of risks, including the risk of sexual abuse, and where sexual abuse was less likely to be prevented, identified, reported or stopped. We have also found that HMG failed to respond appropriately to the reports it received about the welfare of the children, by either stopping migration and returning the children, or putting in place other measures to reduce the risks to the children.
 
3. HMG has not yet made any financial redress directly to individual former child migrants. Most former child migrants have died. This means that in many cases HMG has missed its opportunity to offer redress to those who were affected by its failure. However, around 2,000 child migrants are alive today, and the Panel considers it essential that all surviving former child migrants are offered such redress.
 
4. As a result, the Panel recommends that HMG establishes a Redress Scheme for surviving former child migrants, providing for an equal award to every applicant. This is on the basis that they were all were exposed to the risk of sexual abuse. Given the age of the surviving former child migrants, the Panel urges HMG to establish the Scheme without delay and expects that payments should start being made within 12 months.
 
5. We also propose that no regard be had to any other payments of compensation that have been made in particular cases. This is because we consider that this scheme is driven by the need for the HMG to make redress for its policy failings in this context, and it has not done so to date. Given that this is the rationale for the scheme, the establishment of the Redress Scheme should not be used as a reason for reducing funding for the Child Migrants Trust or the Family Restoration Fund, which funding serves different purposes.
 
6. The Panel has not specifically recommended that other institutions involved in the child migration programmes participate in the Redress Scheme. This is not because we do not consider that these institutions failed the child migrants: our report makes clear that we think they did. Rather, it is because we consider that HMG was primarily responsible and because we are keen to ensure that the Scheme is a simple one, in the hope that it can be effective soon, and make a real, immediate and lasting difference to the lives of the former child migrants. If HMG wishes to look to those other institutions for a contribution to the Redress Scheme, it will no doubt do so.
 
7. We make it clear that we are recommending the setting up of a Redress Scheme because of the particular context of the child migration programmes. One aspect of these programmes which makes them unique was that HMG failed to take steps to respond to the fact that the children were sent abroad, to countries where they would not have the protection of UK law. Different considerations may apply to contexts where the protection of UK law continues to apply to children.
 
Recommendation 2: Further institutional apologies
 
8. We are troubled by the amount of time it took successive British Governments to acknowledge the full responsibility of HMG for the fate of the child migrants. It has taken years for the former child migrants to have the truth of their experience recognised. This truth was clear from the Government’s own documents, kept in the National Archives.
 
9. Through the national apology given in 2010, the evidence provided to the Inquiry and the apologies repeated before us, the British Government has now accepted the failings of the child migration programmes including in part with respect to the risk of sexual abuse. We do not consider it appropriate to recommend that they make any further acknowledgement of or apology for the failings that took place.
 
10. However we do consider that implementing the Redress Scheme is an essential component of the British Government continuing to accept responsibility for the abuses suffered by child migrants, including sexual abuse.
 
11. As we have set out in the institution-specific sections of the report, some institutions have still not apologised for their role in the child migration programmes. We recommend that they do so, as soon as possible. We recommend that they make such apologies not only through public statements but specifically to those child migrants for whose migration they were responsible.
 
Recommendation 3: The preservation of child migrants’ records
 
12. As we have set out earlier in the report the Inquiry’s ability to investigate allegations or evidence of sexual abuse within child migration programmes was hampered at times by the failure of some institutions, notably the Royal Overseas League and the Sisters of Nazareth, to have preserved the contemporaneous documentation.
 
13. The inability to access their records in a straightforward manner, or at all, has caused some child migrants yet further distress and an ongoing lack of clarity over their identity.
 
14. We therefore recommend that that all institutions which sent children abroad as part of the child migration programmes should ensure that they have robust systems in place for retaining and preserving any remaining records that may contain information about individual child migrants, and should provide easy access to them.
 
Conclusion
 
Howe & Co welcomes this first IICSA report and its recommendations. We urge the Inquiry to move quickly to issue further reports and recommendations in the interests of children currently in care and in the interests of victims and survivors who were previously abused in care.