The Catholic Church’s Truth Justice and Healing Council (Council) has released guidelines for how Church authorities should respond when claims of child sexual abuse are made against them (Guidelines).

The Council is the entity responsible for coordinating the Catholic Church’s engagement with the Royal Commission into Institutional Responses to Child Sexual Abuse.

According to the Church’s press release, the Guidelines give effect to recommendations made by the Royal Commission’s Redress and Civil Litigation Report, which was released in September (Redress Report) (see our earlier article).

The purpose of the Guidelines

The CEO of the Council, Mr Francis Sullivan, is quoted as saying that the community expects the Catholic Church to have a compassionate and consistent approach towards survivors of child sexual abuse, including when they take legal action.

‘These guidelines provide a framework for Church authorities to do the right thing in court and ease the trauma of litigation for survivors,’ he said.

The Guidelines set out 16 factors for the Church to consider when dealing with a claim relating to child sexual abuse to achieve the Church’s aim of acting ‘honestly, fairly and compassionately’ towards survivors.

Those factors build what is essentially a Catholic Church redress framework, which offers a means to seek justice for victims of abuse as an alternative to initiating court proceedings.

The Guidelines have been released at a time when other religious organisations are offering forms of redress as alternatives to court action for child abuse survivors, such as the Anglican Church’s decision to reimburse tuition fees for all students who suffered sexual abuse at their schools within the Diocese of Brisbane, which covers much of southern Queensland.

Both the Catholic and Anglican Churches have taken these initiatives in the absence of any formal response from the Federal Government to the Redress Report.

What do the Guidelines say?

The 16 factors listed in the Guidelines seek to overcome some of the key obstacles confronted by victims when seeking to initiate legal proceedings against the Catholic Church.

In summary, the Guidelines require Church authorities to:

• deal with claims promptly and avoid causing unnecessary delay;
• assist the claimant to identify the correct defendant to respond to legal proceedings;
• facilitate access to records;
• make an early assessment of the Church’s prospects of success in defending proceedings and its potential liability;
• act consistently;
• be mindful of the traumatic experience of claimants and endeavour to avoid legal proceedings;
• pay legitimate claims without litigation;
• consider resolving matters to avoid the need for a claimant to file an actual claim;
• provide information about services and support available to claimants, including counselling, pastoral and psychological care assistance;
• offer and participate fully and effectively in alternative dispute resolution processes where possible;
• if avoiding litigation is impossible, take steps to keep costs to a minimum, including not requiring the claimant to prove a matter which the Church knows to be true or has accepted to be true;
• not take advantage of a claimant who lacks resources to litigate a legitimate claim;
• not rely on a statutory limitation period as a defence if it is available – with some exceptions;
• co-operate with requirements for expert evidence;
• not undertake appeals unless the Church has reasonable prospects of success; and
• apologise if the Church authority is aware that it or its representatives or lawyers have acted wrongfully, improperly or in breach of the Guidelines.

This list essentially seeks to help remove procedural, emotional and other barriers to litigation previously encountered by claimants when engaging in disputes with the Catholic Church.

What is the effect of these Guidelines?

The Guidelines are ‘protocols’ for potential claimants, informing them how the Catholic Church will respond to a civil claim for redress made against it (criminal matters are a matter for State/Territory prosecutors and the Police).

The Guidelines aim to remove the need for engagement with court processes and procedures, even before a hearing of a matter commences. For example, the Guidelines’ commitment to facilitating access to records can overcome the need to apply to a court for an order forcing the Church to produce them.

They also establish a redress scheme which includes the three basic elements identified by the Royal Commission as being essential for such a scheme, being:

• a direct personal response by the institution, including an apology and an opportunity for the survivor to meet with a senior representative assuring that the institution has taken, or will take, steps to protect against further abuse;
• access to therapeutic counselling and psychological care as needed throughout a survivor’s life; and
• monetary payments as a tangible means of recognising the wrong survivors have suffered.

The Guidelines don’t provide any indication of how the Church will assess monetary payments to successful claimants, something the Royal Commission suggested could be conveyed in the form of a matrix that assesses the severity of the abuse and the severity of the impact of the abuse – in addition to other factors.

What does this mean for future claimants?

The Guidelines don’t prevent a victim of abuse committed by a representative of the Catholic Church from pursuing litigation against it.

And the Guidelines don’t have the force of law, unlike some statutorily enforced pre-action regimes for personal injury claims which exist in some jurisdictions.

But the Guidelines, if upheld by Church authorities, do indicate to such claimants how the Church will attempt to settle any claim before it makes it to court and the key message is its desire to offer redress using alternative dispute resolution procedures.

It’s unclear how the Catholic Church’s redress scheme will interact with other forms of redress schemes which may be introduced, such as the one proposed by the Federal Opposition Leader Bill Shorten if Labor win the next election (see our article).

It’s also unclear how the judicial system will interpret or respond to the Guidelines if court proceedings are, despite the Church’s best efforts, initiated. However it is likely that any genuine attempt by the Church to resolve a claim without resorting to court action will be regarded favourably by a court, like most ‘pre-action’ dispute resolution initiatives which aim to make court proceedings a last resort.