Safe spaces, safeguarding and the evils of grooming: JWE v LGBT Youth Scotland
By Douglas Brodie - Posted on 4 February 2026
This century our society has had to come terms with the fact that children and young people are at risk of abuse (sometimes sexual) on a scale far greater than had previously been appreciated. We have all become familiar with the term ‘grooming’ which refers to a situation where an adult builds a relationship of trust with a potential victim so they can make manipulate them into allowing abuse to take place. In the context of child abuse the Irish High Court in Walsh v Byrne [2015] IEHC 414, [22][23] (Walsh) described grooming as:
a combination of behaviour by which a child is befriended, to gain his or her confidence and trust and which includes a process by which a person prepares a child, significant adults and the environment for the abuse. The behaviour can involve many acts of individual kindness, but with the aim of gaining access to the child and maintaining the child’s compliance with the abuse and secrecy to avoid disclosure.
Other forms of manipulative behaviour might also be referred to as grooming.
Perpetrators of abuse will be likely to commit criminal offences, but questions of civil liability also often arise. Common law doctrine has had to adapt to be able to adequately address, and compensate for, acts of abuse that are the cause of harm. Notably, under the law of vicarious liability, an employer will now be responsible where an employee intentionally harms a child provided the wrongful act is closely connected to the employee’s job. Previously liability would have been unlikely to arise because an act of abuse would have been seen as the very antithesis of the work the employee was hired to do.
The recent decision of Lord Braid in the Outer House in JWE v LGBT Youth Scotland [2026] CSOH 6 (JWE) concerned questions of civil liability for sexual abuse and canvassed whether further evolution of the common law was called for. The pursuer in this case had attended a youth group run by the defender, a charity for LGBTQ+ young people, from the age of around 15. He claimed that the defender’s employees groomed him and introduced him to adult venues which led to his being sexually abused by older men he met there. He sued the defender for damages of £900,000 for the harm he claimed to have suffered due to the abuse which was said to be the result of the grooming. This initial stage of litigation concerned procedural matters, such that the defender wished to delete a number of the pursuer’s averments from the pleadings before a trial around the actual claim took place.
Four main issues were in play before Lord Braid in JWE:
first, whether the pursuer has pled a relevant case against the defender that it had a duty to safeguard him from harm at the hands of its employees; second, whether Scots law recognises the wrong of grooming (as distinct from any sexual abuse which might follow therefrom); third, whether the pursuer has relevantly pled that the defender is vicariously liable for the acts of its employees in grooming the pursuer and introducing him to exploitative environments; and fourth, whether any liability could extend to the acts of third parties (for whose acts the defender is admittedly not vicariously liable) in abusing the pursuer.
Grooming
JWE raised the question, for the first time in the Scottish courts, whether grooming was a civil wrong in itself. It was argued that if harm arose not just from a sexual assault but from the distinct preceding actions of grooming, a pursuer should also have entitlement to damages in respect of the grooming. There was Irish authority which lent some support to the view that liability could arise on this basis. In Walsh it was said that:
it is appropriate to extend the law of tort, to cover what is now a well recognised and established pattern of wrongdoing, where a child is befriended, where trust is established and where that friendship and trust is used to perpetrate sexual abuse.
The subsequent child abuse case of McDonald v Conroy [2017] IEHC 559 also took the view that a new tort of “grooming” had emerged. The claimant alleged that, between 2004 and 2007, while she was a pupil at school, she was physically and sexually assaulted, falsely imprisoned and sexually abused by a priest (Conroy) who was a religion teacher in the School and was also its Chaplain. The trial Judge upheld these claims. The judge also held that Conroy was guilty of the tort of “grooming”. On appeal in Conroy [2020] IECA 239, [176] the court was decidedly circumspect when it came to the existence of the mooted tort:
The appeals here give rise to significant questions about whether there is a stand-alone tort of grooming and, if so, what is constituent elements are and how it relates to established torts such as sexual assault…it would not be appropriate to attempt to resolve these difficult issues in these appeals.
In JWE it was found to be “unnecessary to express any view on these arguments since counsel for the defender accepted that whether the duties contended for existed or not could be determined only after the court had heard evidence, and that the grooming case, too, was suitable for inquiry. Accordingly, that part of the pursuer’s case must also be allowed to proceed to proof.” Scots law has yet to recognise a delict of grooming and JWE requires us to consider whether it should.
I must confess to scepticism over the wisdom of such a development. Grooming, after all, is simply a means of achieving an improper purpose which may already give rise to civil liability. It is difficult to see that it should be a wrong in itself. Should the courts decide otherwise, what of other devices that might be used, such as spiking (where the wrongdoer inserts a drug into the victim’s drink), to facilitate sexual abuse. As matters stand spiking is not a delict either but simply a means of committing one (albeit any bodily harm caused by the administration of a foreign substance to someone itself may be independently actionable, assuming difficult issues of proof could be navigated).
There might be thought to be an analogy with the historical action for seduction and Lord Braid acknowledged that grooming might represent the modern form of this delict. However, if the delict of seduction is to be rendered fit for contemporary purpose a radical overhaul will be required. It is only committed where the wrongdoer obtains “sexual relations with a virgin” by illegitimate means (D. M. Walker, Delict 2nd edition (1981) 698). Murray v Fraser 1916 SC 623, 633 tells us there must be “some species of fraud or deceit” and grooming will tend to involve impropriety of this kind. The nature of the harm suffered though would have to be fundamentally reappraised.
In Walsh the establishment of a tort of grooming was said to be justified because “the mental trauma suffered by the plaintiff, is not just confined to the acts of assault and battery, but arises also as a result of the consequences of the breach of trust of the defendant who had played such an important role in the plaintiff’s life.” An extension of liability simply on the basis that a breach of trust had occurred would represent a very considerable change in the law (unless the wrongdoer was found to have assumed responsibility). Apart from anything else, allowing for an action on that basis might be thought to be applicable in numerous situations which did not involve grooming.
I would suggest that recognition of grooming as an independent actionable wrong is unnecessary in the absence of demonstrable gaps in the current legal framework where safeguarding is concerned. Defenders may be directly liable to those suffering abuse or on the basis of vicarious liability and JWE also considered both of those dimensions of liability.
Safeguarding and duty of care
Increased public expectations over safeguarding responsibilities are now more likely to be reflected in legal obligations. Feder v Royal Welsh College of Music and Drama unreported 5 October 2023 (CC (Central London)) addressed the obligations owed to students of the defendant and held that there was a general safeguarding “duty to take reasonable care by taking reasonable protective, supportive, investigatory and, when appropriate, disciplinary action steps and in associated communications.” Feder is only a decision of the County Court, but it would be far from surprising if such a duty was found to exist across the HE and FE sectors in general.
Matters may be much more diffuse in the charity sector where the roles and responsibilities undertaken by organisations will vary considerably. In JWE it was said that a safeguarding duty arose given that the users of the defender’s services were known to be vulnerable. In particular, it was said that the defender ought to have had in place clear policies pertaining to safeguarding and/or child protection. It is not remotely surprising that this aspect of the claim was allowed to go to proof; any organisation which set out to create safe spaces would be likely to be under a duty of care with respect to safeguarding. The precise scope of the duty owed may well be more contestable and would turn on the responsibility the defender could be held to have assumed. Evidence of what had been said by the defender as to their role would be pivotal. Hughes v Turning Point Scotland [2019] CSOH 42 concerned a claim against a charity, which ran a crisis unit for homeless persons. The defender was held to have assumed responsibility to provide certain services but was not under an obligation to provide “a safe and comfortable detox”.
In JWE the pursuer also maintained that responsibility arose for acts of sexual abuse committed by third parties not connected with the defender. This aspect of the claim was again found to be one for proof. In general defenders do not owe a duty to protect a claimant from third parties. However, that principle is subject to exception including where the defender has created the source of danger “and it is reasonably foreseeable that third parties may interfere with it and, sparking off the danger, thereby cause damage to persons in the position of the pursuer” (Smith v Littlewoods [1987] AC 241, 273). In JWE it was claimed that the introduction of the pursuer to adult venues provided the opportunity to third party males to sexually assault him and it might be argued that this brought the exception into play:
The pursuer’s case is not that SG omitted to warn him against the perils of frequenting adult venues but that he actively groomed and encouraged him to do so; and that the very thing which was likely to happen if he was introduced to such venues, did in fact happen.
The existence of a duty of care over safeguarding may well be pivotal to the claimant’s prospects of success as it means that a body like the defender in JWE will be directly liable to the claimants should a breach arise. This could mean that a claimant could still recover where the acts of abuse were not sufficiently connected to the wrongdoer’s duties so that the rules on vicarious liability were not satisfied. In JWE, with regard to the case on vicarious liability, it was found that it cannot be said “on the pursuer’s averments, that he is bound to fail to establish a sufficiently close link between SG’s employment and the acts which are said to constitute grooming.” Lord Braid noted that:
there are undoubtedly some factors which point towards vicarious liability (such as that some acts of grooming took place in the defender’s premises; and that the defender, by employing its workers to provide services to vulnerable young people such as the pursuer, created the risk of the wrong of grooming being committed), and others which point in the opposite direction (such as that other acts took place elsewhere).
Conclusions
The need for the common law to evolve in the light of greater awareness of child abuse has been very much apparent for a good number of years and, to their credit, the courts have brought this about in a variety of constructive ways. The expansion of an employer’s responsibility where vicarious liability is concerned is a particularly cogent example. However, I am not convinced that there is anything to be gained by treating grooming as a wrong in it its own right. I suspect that arguments to do so are much more about expressing societal revulsion over despicable behaviour rather than the identification of a gap in the legal framework.