Rev'd Professor Helen Hall, NLS https://www.ntu.ac.uk/staff-profiles/law/helen-hall
On 12th November, Justin Welby, Archbishop of Canterbury, resigned in the wake of a report into a child abuse scandal. Keith Makin, leader of an independent review into the handling of serious and credible allegations against the perpetrator stated:
“The abuse at the hands of John Smyth was prolific and abhorrent. Words cannot adequately describe the horror of what transpired.”
As well as numerous institutional failures within the Church of England, it became clear that Welby could and should have reported Symth to the police is 2013, but chose not to do so. His initial response that this decision was not worthy of his resignation, only compounded the pain and anger experienced by survivors, their loved ones, and the wider community.
The repercussions of these events are likely to be far-reaching, and there are many lessons that need to be learnt within Anglicanism. There are also salutary reminders for other faith groups, and indeed any organisations with safeguarding responsibilities. Three particularly striking thematic concerns were: abuse of positions of trust and power; excessive deference to individuals in senior roles; and failings of leadership and accountability in safeguarding.
One overarching reality is that in order to be effective, systems cannot depend on a particular human actor making good or appropriate decisions. There have to be processes in place that ensure collective action and responsibility. From a legal perspective, organisations will be held accountable in tort for the wrongs of their representatives. It is perilous to allow for single points of failure, especially at the top of an hierarchical chain of command. For what should be obvious reasons, allowing an individual to block allegations from being adequately addressed is a recipe for tragedy as well as disaster. It is also not an adequate response to attempt to shift institutional safeguarding responsibilities to third parties.
A powerful illustrative example comes from the 2024 decision of the High Court in LBA v St Hugh of Lincoln RC Primary School Governors [2024] EWHC 1502 (KB). The facts concerned a paedophile priest who had been attached to a school. The doctrine of vicarious liability operates to render an employer, or party in a position akin to an employer, responsible for the actions of a person who commits a tort, provided that this is closely connected to the job that they were supposed to be doing. This test was satisfied for the bishop of the priest, and as such the church authorities were liable to the trespasses to the person that he had committed. It should be stressed that they were liable because of the relationship between the bishop and the church, not because of any wrongdoing on the bishop’s part. There may or may not have been failings by the employer or quasi-employer, and this is irrelevant to the claim.
In this instance however, the school also became aware of serious concerns about the priest, and the teaching staff were negligent in not taking appropriate action. The claimant therefore sued the school governors, arguing that they were vicariously liable for the negligence of these employees. The school attempted to get the claim struck out on the basis that the claimants had already sued the bishop and recovered for the damage caused by the abuse. They therefore contended that the school and the bishop were concurrent tortfeasors in respect of the same harm, and that the damage suffered had already been remedied by the payment of compensation and costs pursuant to a consent order. In short, the defendants argued that the claimant was effectively attempting to claim twice. The court disagreed.
It was found that a new claim arose each time an act of abuse took place. The claimant had suffered abuse at school and also over weekends. Furthermore, the claim against the school arose in negligence, as opposed to the action in trespass being brought against the diocese. It could not therefore be said that the claimant was seeking to sue the school for exactly the same damage as that caused by the church, and the judge refused to strike out the claim.
The decision demonstrates that failure to act appropriately when safeguarding concerns are raised may, in and of itself, generate liability. Organisations should of course, be dedicated to safeguarding primarily because they wish to protect the vulnerable from hurt, suffering and infringement of their rights, rather than because of the menacing shadow of tort law. This should be especially true for faith groups and other institutions with a stated commitment to care for and respect all human beings. However, it is crucial to realise that should groups fail to honour their promises and apply appropriate policies in respect of safeguarding, the law will enforce consequences, and provide the wronged with reparation. Courts are unlikely to look sympathetically on defendants who have breached their duty of care in negligence, and seek to point the finger elsewhere. Drafting policies and simply putting them on a shelf, poster or website will be inadequate, effective safeguarding practices needed to be integrated into the life of an institution.
Related Reading
LBA v St Hugh of Lincoln RC Primary School Governors [2024] EWHC 1502 (KB)
Archbishop of Canterbury Resigns Over Church Abuse Scandal, BBC News (12/11/2024)
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