How Young is Too Young To Testify in Court?

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Young girl playing with toys

A statement from a two-year old girl is being credited for leading to the child sexual assault conviction of her alleged abuser.

The girl is believed to be the youngest person in the United Kingdom to give a statement to police, and the incident has triggered debate about the desirability of young children providing statements and testifying in court.

The girl was interviewed by a specialist child abuse police officer, assisted by a Ministry of Justice-registered intermediary who advised on the best way to question the child.

The officers used simple “who”, “what” and “where” questions, and a paper figure of a body to elicit information about acts which were allegedly committed against her.

The girl’s alleged abuser pleaded guilty after the statement was served on his lawyers, leading to speculation that the document was instrumental in obtaining the conviction.

The case has led to calls for more trained specialists to be available for children, especially young children, who don’t have a firm grasp on language. The argument is that when appropriately assisted, these children can comprehend the questions being asked of them, and give reliable answers.

The contrary view is that young children are highly susceptible to suggestion, and that the style and manner of questioning and the mannerisms of those involved can influence the answers provided – rendering the evidence unreliable and dangerous.

There are also concerns that the parents of young children and other influential adults could influence or even implant information before the time of questioning, further affecting the reliability of the evidence obtained.

There are additional concerns about the trauma associated with requiring children to testify in court proceedings – whether from inside the courtroom or a remote location – in cases where the defendant maintains a plea of not guilty.

New South Wales makes it easier for kids to testify

However, a pilot programme in NSW has made it easier for children to give statements and testify in court.

Running since March last year, the programme uses trained “witness intermediaries” whose job is to help children understand questions and get their answers across effectively. The intermediaries are specialists in working with children and come from a range of fields, including speech pathology, occupational therapy, teaching and social work.

The 44 intermediaries are considered to be representatives of the court, and their primary responsibility is to elicit information fairly and objectively.

However, there are concerns the pre-existing views of intermediaries and resulting angle of questioning and mannerisms could affect the accuracy and reliability of the information obtained, potentially incriminating people who are innocent of the alleged conduct.

Importance of complainant testimony

The testimony of complainants can be crucial in sexual assault cases, especially considering there are normally no other witnesses to the alleged events.

Victims groups believe the NSW programme is giving children a voice which can lead to abusers being convicted of their crimes.

Under the programme, the testimony of children is pre-recorded and later played inside the courtroom. During NSW trials and hearings, children remain in a remote location while they are asked further questions by representatives of the parties, who are inside the courtroom.

Pre-recording the evidence in chief and keeping children out of the courtroom can reduce the trauma associated with testifying.

Initiative to become permanent

The pilot programme is about half-way through its original three-year time frame, and NSW Attorney General Mark Speakman says the NSW government intends to make the changes permanent.

“This is about making sure children are heard and the justice system is working for children,” Mr Speakman said.

And in light of the preliminary recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, initiatives which help complainants to access the criminal justice system are desperately needed.

There is talk of expanding the programme to include adults with communication problems and disabilities.

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