William Chapman (counsel)
David Greenwood (Switalskis)
Switalskis act for C18 and C19. Both were sexually abused by Benedictine monks: not, as it happens, at Downside or Ampleforth. It does not matter. The experience was the same. The reasons for it are the same.
Our submissions are:
The EBC has proved itself incapable of self-governance to protect children in its care. We reject the reasons why offered by the Benedictine monks who have appeared before you. We emphasize the impediments to self-governance presented by:
Catholic teaching; Canon Law; The rules of the Benedictine Order;
Its hierarchical structure;
Its unincorporated status.
We recommend, in summary:
. The creation of a ‘failure to report’ offence with no exception for the confessional.
i. The creation of a ‘failure to protect’ offence.
ii. The extension of ‘position of trust’ offences.
iii. The creation of a new statutory body with powers to police and enforce basic standards of child protection. We envisage a body similar to the Health and Safety Executive.
iv. A review of the powers of the Charity Commission.
Items i) to iii) are recommendations made by the Australian Royal Commission in its ‘Criminal Justice Report’ published last week.
There are real obstacles to the effective enforcement of external regulation that are peculiar to the EBC for the reasons given in a).
d. So long as the EBC is engaged in the care and education of children the EBC may, even with the measures we recommend, pose an unacceptable risk to children. This raises a wider question of the extent to which faith-based education is conducive to the safety of children. We reserve our position on this wider question until the conclusion of the further investigations relating to the Catholic and Anglican church.
The EBC is incapable of self-governance
3. The EBC has failed to implement appropriate child-safeguarding over decades. Those failures have persisted post-Nolan (2001), post-Cumberlege (2011) and post-Carlile (2011). In 2010, on a review of the Downside files concerns were raised in relation to 16 out of the 23 monks at Downside.
4. Those failures persist now even in the face of this Inquiry. Children are still at risk at Downside & Ampleforth according to their own former Abbot and headmaster, Aidan Bellenger. Writing as recently as 1 July 2017, in a letter he never expected to be made public:
‘RC-F77’s attitudes are perverse and criminal and he should not be allowed to reside at Downside. His case parallels that of RC-F18 at Ampleforth’.
5. James Whitehead, the departing headmaster of Downside said in his statement,
“The real reason for my impending departure, in my interpretation, is the fact that, on a number of occasions, I have had to challenge the poor management of Dom Leo as Chair of Governors which extends to a range of areas of School life, including safeguarding.”
6. Those failures have not only exposed children to the risk of abuse: they have in a number of cases been directly responsible for further abuse [give e.g.s]. [Richard White and Gregory Carroll]
7. The EBC has failed for reasons that may prove common to other institutions you will investigate. But is also clear that it has failed for reasons that are peculiar to the English Benedictine Congregation.
8. Let me first reject the various explanations offered by the clerics who came before you:
i. That times were different and social standards were different;
ii. That they were naive;
iii. That we are judging them with the benefit of hindsight;
iv. That child safeguarding measures were not as highly developed in the past as they are now.
v. That record keeping and filing in the past was poor.
9. All those things may be true, but they are not the reasons why the Benedictines failed. A good case study is that of Anselm Hurt because it is a case that spans decades. We know from that case:
a. Social standards were not different then:
. We know that the headmaster in 1970 reacted immediately to the disclosure of Anselm Hurt’s abuse by:
Reporting him with full details to the statutory authority
i. We know that a parent at the time wrote to the Abbot in these terms because she was concerned that Hurt was preying upon her 15 year old son in 1970 even after his dismissal:
“We were…. told by Father Watkin the real reason for the dismissal…. This man is amoral and evil. He is a member of your community and you must take some responsibility for him…..Father Passmore, if harm comes to [my son] I shall find it very hard indeed to forgive you.”
These offences were as repugnant to right-thinking people then, as now. There were no elaborate safeguarding protocols in 1970. Yet a statutory authority was informed and at least one parent was told why he had been dismissed. The views of the headmaster were clear: that Hurt
‘should not work in a school or youth club or anything of that character in future”.
The monks in charge were not naive then. They were not naive later. They are not naive now.
i. Over the course of the next 40 years, the monastery re-integrated this monk into society and finally into monastic and priestly life. This process of reintegration took place at the same time as child safeguarding awareness and policies developed. Even though Hurt had been kicked out of the monastery, he was looked after. It was a cradle-to-grave service.
ii. The Abbot provided references for various jobs Those jobs included ‘Trainee Child Care Officer’ and ‘probation officer’ a job that involved ‘supervision of offenders of all ages as well as young people who, because of their home circumstances, need special care’. Hurt wrote to the Abbot thanking him for one such ‘glowing’ reference’. He felt bold enough to ask that he would ‘be grateful if you did not raise the matter of the ban [on teaching], as this could naturally complicate things, and possibly weigh against me in a competitive selection’.
iii. Hurt was provided with money. His last letter to the Abbot was in 1974 to ask for money to buy a house. With the support of a Catholic psychiatrist, Dr Seymour – commissioned and paid for by the Abbot – he eventually overturned his ban on teaching. It seems he got a job in Liverpool, married and had children. Stage 1 was completed: he was reintegrated into society.
This was not naivety. The Abbot knew full well that the headmaster’s view, as clearly communicated to the education department
Stage 2 began again with Abbot Charles and Hurt’s reintegration into monastic life in the 1990s. It is particularly telling that the chief reason – when you piece together the correspondence – that Hurt was prevented from returning to Downside was the continued presence of Father Aelred Watkin at Downside – the same man who had said Hurt should not be let near children. That tells you that the much vaunted change of atmosphere at Downside heralded by Abbot Charles was as much about tolerating known paedophiles in their midst than it was about common humanity.
d. Nor was the Abbot of Glenstal naive. He wanted to know about Hurt’s past for the sake of the Abbey and their potential civil liability, not the safety of children. He wrote in 1994: “I have just attended a series of meetings on the whole topic of child-abuse by the clergy, and the insurance implications – quite apart from more exalted considerations – are horrendous” Abbot Charles reviewed the file and sent it. In reply, the Abbot of Glenstal said he would ‘destroy that which was specifically damaging to Anselm as some letter from Rome recommends’. That was pure cynicism, a cynicism that did not receive any reproach or comment from Abbot Charles. On the contrary, Abbot Charles sought to suggest to you at this Inquiry that the proposed action by the Abbot of Glenstal was entirely appropriate.
e. The baton passed to Abbot Yeo. Yeo remembered Hurt from his school days and then as postulant as someone with an ‘engaging personality’. On 11/4/01 he supported his return to the priesthood: Hurt was free to perform all the sacraments and would be most welcome to visit Downside. He did so without any knowledge of what Hurt had done for the last 30 odd years. On 14/7/01 Yeo was elected Abbot President. In September 2001 the final Nolan report was published with its final recommendations:
i. Recommendation 69: It is important to treat current allegations about abuse that took place some years ago (‘historical allegations’) in exactly the same way as allegations of current abuse.
ii. Recommendation 70: Bishops and religious superiors should ensure that any cases which were known in the past but not acted on satisfactorily (‘historic cases’) should be the subject of review as soon as possible, reported to the statutory authorities wherever appropriate, and that there is appropriate follow-up action including possibly regular continuing assessment.
f. Those were recommendations which Yeo said he supported. He said this did not cause him to reflect on what he’d just done for Anselm Hurt. We invite you to reject that. He clearly did reflect on it. He knew what he should do. He deliberately failed to do it.
g. And so we see how over the course of 40 years a known abusive monk, that had been kicked out of the monastery was gradually reintegrated back into the fold, in an Abbey with a school, and with no restrictions on his activities.
h. What happened with Anselm Hurt was not naivety. It was cynicism. It is not judging them with the unfair benefit of hindsight. Father Watkin knew Hurt was a danger from the start until his death. The monks that came after knew what they should have done at the time and flatly refused to do it. It wouldn’t have mattered what safeguarding guidance was in place or how much training they had. They would always have refused to follow it.
i. We reject the excuse that the filing system was inadequate. Abbot Charles told you,
“I think monasteries generally are rather keen on archives, so things don’t get thrown away…..I would say the files are pretty complete, at least with what has been given to be filed.”
He had no difficulty finding Hurt’s records from 20 years before. It contained the relevant information. The problem with the records is that the filing system was opaque to outsiders.
k. Of course, there is not much to be done if records are deliberately destroyed or if the filing system is opaque to outsiders. No one is unlikely to forget the evidence of Leo Davis and how he barrowed loads of monks’ files to a distant wood to burn them over the course of several days.
11. These are highly educated men, all from very similar backgrounds: top public schools, top universities, white, upper middle-class. They ran large estates and large enterprises. These are not unworldly men who could not have been expected to know better. These were monks, who should as a body, have helped lead the way. In many cases they did not even follow. They were following a script of their own. Some, like Yeo, paid lip-service to child-safeguarding. Some like Timothy Wright, did not even do that. Some like Cuthbert Madden made seeming efforts. But as Adrian Child said in respect of essentially voluntary guidance,
“a lot of this seems based on the integrity of individuals….[even where progress was made] it was dependent on the skills and expertise of the coordinator and the doggedness in the endeavour of the abbot”.
11. What Abbot, with any sense of responsibility, in relation to a known abuser in his community, would write (Charles Fitzgerald-Lombard, 18/6/97)
“I am hopeful that the climate among our national witch-hunters will be sufficiently muted for him [Nicholas White] to take up a strictly monastic residence again”.
12. If that is what they are prepared to put in writing or to outsiders, to what depths of cynicism do they descend between themselves on the telephone and in the refectory?
13. Fitzgerald Lombard, Yeo and Wright did not act with integrity. Men of faith, they acted in bad faith. Better men may come. But what if they do not? Had it been left to men like Yeo and Wright, the perpetrators would have avoided criminal justice. The consequence of avoiding criminal justice is that i) the perpetrator goes unpunished ii) there is no public record of the offence iii) he is not subject to any of the restrictions the criminal law then imposes iv) children remain at risk. These monks have sought to create – with some success – a latter-day Benefit of Clergy.
The real reasons for the failings
14. The primary reasons for EBC’s failure is a) the lack of accountability of those responsible for the welfare of children and b) the conflict of interest that inevitably arises when those in charge are responsible for the welfare of children and potential perpetrators.
15. Those reasons are likely to be typical for a number of the institutions you investigate. But there are features of this particular manifestation of the Catholic Church that show how intractable the solution is likely to be.
16. The first is what these men believe in: the teachings of the Catholic Church and the Rule of St Benedict.
a. According to the rule of St Benedict, the Abbot is ‘believed to hold the place Christ in the monastery’ and ‘..the Abbot must never teach or decree or command anything that would deviate from the Lord’s instructions’. Abbot Charles said that ‘apart from the Almighty’ he did not answer to anyone. Even the Abbot President was limited in his power over the Abbot.
b. Abbot Wright wrote, ‘An Abbot’s first task, before all else, is the care of his monks….each of the brethren offer their obedience….Their home is the one place to which they can always return, regardless of what has happened, because their home is defined by an enclosure from which externs are excluded.’
c. When Abbot Wright had the temerity to challenge the paramountcy principle, he was merely stating his truth: monks came before children.
d. The power of the Abbot is qualified only by the necessity of election by the monks every 8 years, the teachings of the Catholic Church, Canon Law and instructions from Rome. The Holy See could remove an Abbot. The Holy See could issue instructions in individual cases. We have seen how powerful that allegiance can be:
i. By Canon 489:
§1. In the diocesan curia there is also to be a secret archive, or at least in the common archive there is to be a safe or cabinet, completely closed and locked, which cannot be removed; in it documents to be kept secret are to be protected most securely.
§2. Each year documents of criminal cases in matters of morals, in which the accused parties have died or ten years have elapsed from the condemnatory sentence, are to be destroyed. A brief summary of what occurred along with the text of the definitive sentence is to be retained.
Abbot Dillon of Glenstal appears to have received a standing instruction from Rome to destroy documents damaging to a monk.
iii. The seal of the of the confessional is absolute: even where a child tells a priest in confession that he/she has been sexually abused. The seal of the confessional protects abusers and encourages them to abuse further by granting absolution. You can infer from A221’s (the boy at Downside abused by Richard White) evidence and that of Richard Yeo that these monks confessed their sexual abuse to their fellow monks and did so repeatedly as they carried on abusing.
iv. Richard Yeo himself told us that there was sufficient concern that there were elements of Catholic theology that ‘might tend to encourage abusive behaviour’ that the EBC sponsored a conference about it. His own particular concern was that:
‘there is something in the nature of the priesthood deriving from the fact that, according to Catholic theology, there is an ontological effect on the person on becoming a priest, does this have an effect in creating an atmosphere where child sexual abuse is — I won’t say facilitated, but made less unlikely.’
This begs the question: if there is a conflict between Catholic theology, teaching and practice, and the abuse of children, what will the Benedictines do about it? The answer has, we say, been demonstrated in the evidence. The safety of children comes second.
f. This is the same concern raised by the United Nations when it wrote in 2014:
“the Committee reiterates its concern about the Holy See’s reservations to the Convention which undermine the full recognition of children as subjects of rights, and condition the application of the Convention on its compatibility with the sources of law of Vatican City State”.
17. The second reason is the hierarchical structure of the EBC.
a. The harmful concentration of power in one individual – the Abbot – was demonstrated by the evidence of George Corrie. Even as Prior and safeguarding officer, he was unable to persuade the Abbot to adopt a child protection procedure.
b. The person with power at Ampleforth, Abbot Timothy Wright, was able to resist outside interference for an extended period by refusing to hand over or name individuals against whom there had been complaints. He recruited a lawyer to help with the resistance (and may have avoided full disclosure – we will never know as the police didn’t pursue a search warrant. See the evidence of Barry Honeysett of North Yorkshire Police.
c. Both Eileen Shearer and Jane Dziadulewizc made it clear they were frustrated that guidance by the Catholic Safeguarding Advisory Service was simply that: advisory only.
18. The third reason is the culture and traditions of the EBC.
. This was an old boys’ club. Once in, you were catered for, for life. These were almost exclusively, public-school (usually Ampleforth/Downside), Oxbridge-educated, upper middle-class, white, men. They often knew each other from school or university days. They lived literally, and not just figuratively, like brothers. They worked together, ate together, prayed together, celebrated mass together – and heard each other’s confessions. A clear case of the operation of this old boys’ club was the case of Anselm Hurt. Even after estrangement lasting over 20 years he was levered back to full monastic life.
a. It’s a club that came with very worldly benefits. Jane Dziadulwicz: “Downside Abbey is absolutely beautiful. It really is beautiful, as is the school, and it has beautiful facilities, it is a beautiful environment. The monks’ rooms are well furnished and they are very comfortable. Their private spaces are comfortable. There are plenty of private rooms within the abbey that are very comfortable.”
b. A job as an EBC monk also came with high status. You were not just a priest, but a well-to-do pillar of the community. Deference came automatically from parents who were, effectively, lay members of this club. We heard how A221’s father a) sought an injunction to prevent publicity as much for the Church’s sake as his son’s and b) was prepared to shake the hand of Father White even after he had learned that White had abused his son.T
c. To outsiders this is often intimidating. It played its part in inhibiting decisive action and the full use of their powers by, for example, Barry Honeysett (who acknowledged some reluctance to embark on a search of the Ampleforth premises) and DC Mark Smith (who was on the verge of arresting Aidan Bellenger for obstructing his inquiries) and even Elizabeth Mann who hesitated before disclosing the contents of her risk assessments.
19. The final reason is the legal status of the EBC.
. Religious organisations do not have a corporate structure and so cannot be held accountable. In law these organisations are simply groupings of individuals who by their nature can leave the organisation, disappear or die. They are simply unincorporated associations. It is a point raised by Richard Yeo himself: ”The only juridical persons associated with religious congregations in this country are the charitable trusts which hold the property of most of our congregations.”
a. As unincorporated associations the EBC (and many other Church organisations) are not, and cannot be, subject to effective external regulation.
b. The absence of a corporate structure leads to confusion and non-standard practice.
c. The internal working of religious communities is not based on sanction for poor performance. It is based on trust that each individual is performing well.
20. We agree with Adrian Child when he said:
“..I don’t see any value in tinkering around the edges and saying, “Here you are. Here is a third opportunity [post-Nolan, post-Cumberlege]. Go away and sort this out yourself….there needs to be accountability and some kind of mandatory enforcement.”
21. The panel should make it clear that the moral obligation is to report known or suspected child abuse to the police.
22. The panel recommend the creation of a failure to report offence targeted at institutions where the relevant person:
a. Knows or suspects that a child is being or has been sexually abused or
b. Should have suspected (on the basis that a reasonable person in their circumstances would have suspected)
By a person associated with the institution.
23. We appreciate that this would impose criminal liability for failure to report a suspicion that the person did not form.
24. A law which requires professionals who work with children in ‘Regulated Activities’ to inform the Local Authority Designated Officer (‘LADO’) or in appropriate circumstances children’s services the professional knows, suspects, or has reasonable grounds for knowing or suspecting child abuse. Failure to inform would be a criminal offence. Presently this is only guidance which is all too frequently ignored.
25. This legislation would introduce a much stronger culture of abuse prevention as well as supporting and protecting mandated staff. In the absence of law those staff who do report presently are, by default, whistle-blowers with very little protection. Law can be a catalyst for behavioural and cultural change. The aim of the proposal is not to criminalise staff but to support them when they are faced with the most challenging circumstances – concerns of potential or known child abuse. Being legally mandated to report removes an enormously challenging set of decisions staff are currently being asked to make. We have seen in this case study the effect of the absence of mandatory reporting.
26. We are satisfied that, where the elements of the reporting obligation are met, there should be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in or in connection with a religious confession.
Failure to protect offence
27. The panel should consider introducing an offence of failing to protect a child from the risk of sexual abuse. Such a law has already been enacted in the Australian State of Victoria in 2015. Under the Victorian offence in section 49C, persons in authority in an organisation are required to protect children from a substantial risk of a sexual offence being committed by an adult associated with that organisation if they know of the risk. They must not negligently fail to reduce or remove a risk which they have the power or responsibility to reduce or remove.
28. “Many of our case studies reveal circumstances where steps were not taken to protect children in institutions. These include examples where persons were allowed to continue to work with a particular child after concerns were raised, and they continued to abuse the particular child. They also include examples where persons who had allegations made against them were allowed to continue to work with many other children and they went on to abuse other children. In some cases, perpetrators were moved between schools or other sites operated by the same institution.”
The extension of ‘position of trust’ offences.
29. The panel should review the criminal offence of ‘abuse of position of trust’ under sections 16-24 of the Sexual Offences Act 2005. It should consider whether the existing categories of forbidden relationships with 17 & 18 year olds should be broadened. It might be broadened to include the case where the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim. We make this suggestion following the evidence of A117 who was abused by F80 when she was 17 and wheelchair-bound and he was 52 and a senior monk at Downside. We make the suggestion whether or not it proves possible to capture the described behaviour of F80. The categories as they currently stand are too narrow.
30. We note this was a recommendation made Australian Royal Commission in the recently published Criminal Justice Report.
The creation of a new statutory body to police and enforce regulatory
31. We invite the panel to consider the creation of a new statutory body to police and enforce minimum national standards of child-safeguarding. We envisage such a body having similar powers to the Health & Safety Executive. The Health & Safety Executive operates for the safety of workers. Children are an even more vulnerable group. The absence of a powerful statutory body dedicated to their protection is a serious defect.
32. Such a body will:
a. Establish a register of relevant Institutions that look after children.
b. It will be an offence to look after children without being on the register.
c. To be on the register institutions have to introduce a corporate structure.
d. “regulated” institutions will be forced to adhere to minimum safeguarding regulations.
e. have the power to prosecute regulated organisations for breach of this guidance (similar to HSE prosecutions). Fines will be imposed.
f. All complaints are to be passed to the independent body by a receiving institution with a criminal sanction for failing to do so.
g. The body will gather information from complainants. It will have the power to compel disclosure of material.
h. It will liaise with and assist civil authorities such as the police and social services. It would ensure the police and other statutory organisations are taking appropriate action within reasonable timescales. It will have the power to compel the police to investigate and refer cases to the CPS.
i. For the purposes of making an award of compensation and support It will investigate the complaint using the balance of probabilities as the standard of proof.
j. The body will decide on reparations and support to be offered to the complainant.
k. Complainants will be allowed to take advice from lawyers and a contribution towards legal costs will be awarded.
l. The cost of the body’s work, support, reparations and legal costs are to be paid from a levy on the institutions.
m. It will provide to Government and the United Nations Committee on the Rights of the Child with regular reports on progress of UK organisations in fulfilling their obligations at the UN conventions.
33. Both Ampleforth and Downside schools have charitable status. The panel should:
a. review the powers of the Charity Commission to change that status when serious child safeguarding concerns are revealed;
b. Consider whether the ‘advancement of religion’ should remain a charitable purpose given the conflict between that purpose and child safety.
34. Should the State be subsidising institutions that, in the words of Aidan Bellinger, tolerate and encourage paedophiles or where, in the words of Richard Yeo, there are elements of the promoted theology that encourages child abuse?
35. it is a wonder any parent would feel confident sending their child to these schools, let alone those who, because they are necessarily rich, have a choice. As it is, these schools have long enjoyed charitable status and the tax relief that follows. If these were state schools with a less august history and a lesser sense of their own importance – if they were not, in short, pillars of the Catholic establishment – they would have been closed.
36. What happened was beyond mere negligence, a lack of understanding of proper procedures or a naivety that is excused by their cloistered existence. The evidence is that these monks deliberately put children at risk to protect paedophile monks and the institutions in which they lived. They fomented an environment that promoted abuse and tolerated it when discovered. Given the requirement for confession to fulfill their priestly function, discovery was almost immediate. They have behaved like this not just in the dim and distant past but recently: post-Nolan, post-Cumberlege. I should like to say the Benedictine Order have at least paid lip-service to modern reforms. In the case of Abbot Timothy Wright, you could not even say that.
37. Stripped of the religious cloth that has hung like a heavy pall over all these proceedings there is nothing left but an unincorporated association. One whose care of children should not be tolerated in any walk of life. To the extent you hesitate at such a suggestion I would invite you to consider that the reason for your hesitation is simply the power and influence of these revered institutions.
I would like me to record my gratitude for the tenacity and bravery of those victims of abuse who have given evidence. I would also like to give credit to organisations such as the Ministry and Clergy Sexual Abuse Survivors group for their support and ideas.