The law moves slowly: defence strategies shouldn’t 

In early February 2025, the government published its response to the consultation on the law of limitation in civil child sexual abuse (CSA). The response confirms that a key recommendation of the Independent Inquiry into Child Sexual Abuse (IICSA), that the limitation period applicable in civil CSA claims be removed, will be implemented. 

Currently, the primary limitation period for bringing a civil CSA claim is three years from the date a survivor turns 18. However, it is widely accepted that such claims take an indeterminate amount of time to surface, sometimes decades later. Survivors of CSA face many barriers to earlier disclosure caused by the CSA itself, which can include profound feelings of guilt, shame and embarrassment. They may have had no access to avenues for safe disclosure or may have previously disclosed their experience but were not believed. Given that the delays in disclosure are intrinsically linked to the insidious impact of the abuse itself, it is clear that the limitation period is unjust. 

Claimants in civil CSA claims can overcome the limitation hurdle. However, they have the onerous burden, due to the complexities of the issue and the multiple relevant factors that may be involved in the delay, in persuading the court to exercise its unfettered discretion to disapply the limitation period. In reaching a decision, the court will consider several factors including the length of, and reasons for, the delay, and the impact upon the cogency and availability of evidence. Ultimately, claimants must persuade the court that a fair trial is possible. 

The operation of the limitation period in civil CSA claims means some cases are rejected by the court at trial due to the delay in bringing proceedings. In addition, the prospects of success in survivors overcoming a limitation defence present a stark litigation risk which may mean cases settle for a financial sum significantly less than a claimant deserves. In some cases, the prospects may be so low that legal representation cannot be secured. 

Implementation of IICSA’s recommendation on limitation will not remove the fair trial argument from civil CSA claims, but it will shift the burden of proof. Claimants will no longer have to prove that a fair trial is possible, instead the Defendant will be required to prove that it is not. At first sight, this may seem a minor change, but claimants may find it easier and less invasive to counter a ‘fair trial’ attack. There will, however, still be arguments, amongst other things, about the impact of the delay on the cogency and availability of evidence. Claims will still be rejected by the court, if it determines that a fair trial is not possible. 

At the time of writing, despite confirmation from the government that the primary limitation period will be removed, limitation continues to operate as a primary defence to civil CSA claims. It is a stark and draconian defence which, if successful, eradicates a claimant’s claim and prevents examination by a court of issues that are of significant importance to the claimant: e.g., the abuse suffered, any institutional failings which caused or contributed to the environment in which the abuse occurred, and the impact of the abuse upon the claimant. Equally, at a societal interest level, in the absence of any determination about institutional failings, opportunities are lost for institutional improvement. 

Precisely when it will be removed is unclear, but it is unlikely to be soon. It is already long overdue, given that IICSA published its final report over two years ago. In addition, implementation will require primary legislation to be passed and the government has proposed that further consultation will need to take place on a suitable legislative vehicle. It is, however, hoped that the significance of this important reform will inform the level of priority it is given. 

That said, survivors of CSA who seek civil redress should continue to bring proceedings as soon as possible, based on the circumstances of each individual case. When reform will take place is uncertain, but what is clear is that defendants will still be able to advance arguments that a fair trial is not possible, and waiting for implementation will do nothing but strengthen those arguments. It is important that steps are taken to preserve and gather relevant evidence promptly. 

The government’s response clearly indicates acceptance that the limitation period in civil CSA claims is unjust and needs reform. It is hoped that defendants (and their insurers) will also accept this. The law will not change overnight, but the attitude of those who defend civil CSA claims can. Moving forward, the defence of claims should adopt an approach which accepts the now prevailing recognition of the inherent unfairness in the limitation period for survivors of CSA.