Making a claim against the Catholic Church
The Royal Commission into Institutional Responses to Child Sexual Abuse has re-commenced its Ballarat public hearings, putting the spotlight firmly back on the Catholic Church. But in practical terms, what is the current status of the claims being made against the Church?
And, if you are considering making a claim, should you use of the Church’s internal processes, or pursue your claim in the courts?
The Catholic Church introduced the Melbourne Response in 1996 (chiefly at the initiative of George Pell) to assist survivors of sexual, physical or emotional abuse by priests, religious and lay persons under the control of the Archdiocese of Melbourne. Under this process, survivors must make a complaint to the “Independent Commissioner”, who makes enquiries into the allegations and makes a determination as to whether he is satisfied the abuse occurred based on the evidence.
The "Independent Commissioner" meets with survivors to hear their recollections of abuse and also has the power to question the relevant priest if alive. If the Commissioner is satisfied that the abuse occurred, then the matter is referred to the Compensation Panel. The Compensation Panel can recommend that the Archbishop make a monetary award, currently of up to $75,000, to the survivor. Survivors may also access counselling services through Carelink or pastoral support services.
In August 2014, while giving his evidence to the Royal Commission, Archbishop Hart announced that retired Federal Court judge, the Hon. Donnell Ryan, would undertake a consultation to review the processes of the Melbourne Response, including monetary payments. Over 18 months later, this review is still ongoing.
Towards Healing, also developed in 1996, deals with claims of abuse within the Catholic Church outside of the Archdiocese of Melbourne. Towards Healing principles and procedures state that the Church aims to resolve claims following the principles of ‘truth’ and ‘humility’. Under this process, survivors must make a complaint to the Church Authority or the Director of Professional Standards. The process may involve an ‘assessment’, whereby the facts of the case are investigated, and a ‘facilitator’ who arranges the process for communication between the survivor and the Church Authority. There is no cap on the monetary payment that can be made to survivors under Towards Healing.
Proceeding under the Melbourne Response/Towards Healing
Although claims may be pursued under the Towards Healing and Melbourne Response processes, their lack of independence from the Catholic Church has attracted significant public criticism. Indeed, in the Royal Commission’s report of Case Study Number 16 – the Melbourne Response, the Commissioners made the finding that ‘the Melbourne Response is not sufficiently independent of the Archdiocese of Melbourne in its operation.’ The Commissioners also found that the separate processes of the Melbourne Response and Towards Healing created a situation whereby ‘complaints may not be treated in a like manner and consistency of outcome would not be achieved.’
Rather than proceed under internal Church processes, and until an independent redress scheme is established, we believe that issuing proceedings in court or attempting to resolve claims out of court directly with the lawyers for the Catholic Church by way of informal settlement conferences are the most suitable courses of action in claims involving the Catholic Church.
Given the cost of litigation and the delays and risks involved, we generally recommend that the settlement process is explored first before any decisions are made in relation to litigating.
Is the Ellis Defence still used?
The controversial so-called “Ellis Defence” was established when the High Court agreed with the NSW Supreme Court of Appeal decision that the Catholic Church could not be held liable for abuse in a claim against religious authorities by Mr. Ellis because there was no body with financial resources that could legally be sued. The defence was famously employed to deny survivors the opportunity of successfully issuing civil proceedings against the Catholic Church.
In November 2015, the Royal Commission heard evidence that as at February 2015, there were only 14 civil court claims relating to child sexual abuse by priests, no doubt due to the technical defences the Archdiocese has in the past deployed in such claims.
Seven of the 14 claims relating to sexual abuse by priests led to monetary payments, with the Church paying an average of $238,000 to each claimant. By way of contrast, the average monetary payment made by the Church for claims of sexual abuse by priests via the Melbourne Response was $35,000. (http://rct-law.com.au/legal-blog/2015/commission-hears-of-widespread-abuse-in-melbourne-archdiocese)
However, recent statements by Church authorities have indicated that the Church may waive their right to employ the Ellis Defence in some cases.
During his previous evidence to the Royal Commission, Cardinal Pell has stated that in his view, “the Church in Australia should be able to be sued in cases of this kind.” Similarly, Archbishop Hart, in his evidence to the Royal Commission, has stated that the Catholic Church should provide victims of child sexual abuse with an entity to sue.
This sentiment has been reflected in the ‘Guidelines for Church Authorities in Responding to Civil Claims for Child Sexual Abuse’, released by the Truth Justice and Healing Council on 23 November 2015 and operational as of 1 January 2016. The Guidelines are designed to ‘promote justice and consistency’ in the way that the Church handles child sexual abuse claims and conducts litigation.
Under the Guidelines, the Catholic Church has committed to ‘assisting the claimant to identify the correct defendant to respond to the legal proceedings.’ Among other things, the Church will also grant access to records relating to the survivors, paying legitimate claims without the need for litigation, and participating fully and effectively in alternative dispute resolution processes wherever possible.
Although Catholic Church’s approach to the Ellis Defence remains unclear, the introduction of the Guidelines, and in particular the Church’s commitment to identifying the proper defendant for survivors who wish to pursue civil proceedings against the Church, is a positive step forward in assisting survivors to achieve justice.
We are hopeful that the introduction of these Guidelines will make it easier for survivors to pursue claims against the Catholic Church in the future.
However, it remains to be seen whether the Catholic Church will walk the walk as well as talk the talk when proceedings are issued in court.