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Assessing the Scope of the Post-Ipp "Close Associate" Special Limitation Period for Child Abuse Cases

Mathews, Benjamin P. (2004) Assessing the Scope of the Post-Ipp "Close Associate" Special Limitation Period for Child Abuse Cases. James Cook University Law Review, 11, pp. 63-83.

Abstract

The 2002 Ipp Review of the Law of Negligence recommended the enactment of a special limitation period for the commencement of personal injuries litigation in cases where a child is injured by a parent or a person who is in a 'close relationship' with the child’s parent. A person would be in such a relationship with a child’s parent if he or she had a relationship with the child's parent, such that the child's parent might be influenced not to bring an action on the child's behalf (the first limb of the definition); or, if the person's relationship with the child's parent was such that the child might be unwilling to disclose the relevant acts (the second limb of the definition). In recommending this special limitation period, the Ipp Report appeared to acknowledge features of some classes of child abuse cases which make a standard personal injuries limitation period unjustifiable. Following this recommendation, New South Wales and Victoria enacted legislative changes which aim to give survivors of child abuse perpetrated by a parent or a person classed as a 'close associate' of a parent a justifiable period of time in which to institute personal injuries proceedings. This article discusses the Ipp Report's recommendations regarding the special limitation period and the reasons given for those recommendations, which are largely motivated by psychological evidence concerning the effects of child abuse. It then outlines the legislative provisions in New South Wales and Victoria, which embody the essence of the Ipp recommendations. The article then consults evidence of the psychological effects of child sexual abuse, and studies of non-disclosure and delayed disclosure by survivors of child sexual abuse, to inform an assessment of the conceptual basis of the second limb of the close associate provision. Using the psychological evidence and empirical evidence of disclosure and non-disclosure as analytical tools, this article will argue that the second limb of the close associate provision would be better predicated not on the tortfeasor's perceived relationship with the child’s parent, but on the nature of the acts and circumstances of abuse and their impact on the child's willingness to disclose their abuse. The article is of particular relevance to New South Wales and Victoria, but, given the desirability and likelihood of other Australian jurisdictions enacting a special limitation period for child abuse cases, it is also relevant to the rest of Australia.

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ID Code: 6418
Item Type: Journal Article
Additional URLs:
ISSN: 1321-1072
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2004 James Cook University
Copyright Statement: Reproduced in accordance with the copyright policy of the publisher.
Deposited On: 09 Mar 2007
Last Modified: 29 Feb 2012 23:15

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