Court in the Crossfire — Children as Witnesses 

The article examines the law and practices applicable to children as witnesses from a family law perspective.

Yes, I’m stuck in the middle with you
And I’m wondering what it is I should do
It’s so hard to keep this smile on my face
Losing control, yeah, I’m all over the place
Clowns to the left of me, jokers to the right
Here I am, stuck in the middle with you

Stealer’s Wheel, ‘Stuck in the Middle with You’

This verse from an old song aptly describes the plight of children caught in a custody battle. But it is equally applicable to the plight of child witnesses and the plight of judges too, having to help these child witnesses in their roles in the administration of justice, amidst battling parents and their combating lawyers.

But to quote the words of Moira Rayner:

Justice for children is a moral imperative. If we want children to respect others, we have to respect them. If we want our children to become good citizens, they must learn citizenship from our example. If children do not experience what it means to be the holder of rights; if they do not see adults taking their rights seriously; if the right to be treated with respect is not built into their early development and education and into government policy and services for them, there can be no serious prospect of developing a human rights culture in our future.¹

The purpose of this article is to:

• examine the law and practice applicable to children as witnesses in family matters, as opposed to the approach taken in criminal cases;
• identify some initiatives already undertaken by the legal system to protect child witnesses;
• examine issues as regards evidential aspects of testimony from children and alternative techniques for obtaining evidence of matters which concern or affect children;
• ask if any difference in approach is justified or desirable; and
• suggest some guidelines for lawyers and adjudicators to consider when dealing with child witnesses.

Convention on the Rights of the Child

The starting point for the advocacy of the child’s view or opportunity to be heard in court proceedings is Art 12 of the United Nations Convention on the Rights of the Child (‘CRC’) 1989, and in particular, Art 12(2) stating that:

1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.²

However, despite its importance, the limitations of Art 12 should be noted:

• Neither paragraph promises that the children’s wishes are to be acceded to; the Article is about consultation and participation, and not self-determination.
• How children are to be heard is not clearly specified: Art 12(2) makes no promise that the child will be heard in person, or even by a representative designated to act for that child.
• It merely refers to the child’s views being transmitted either directly or through ‘a representative or an appropriate body’: this does not rule out the child’s own parent claiming to represent the child, despite the obvious conflict of interest in most family proceedings involving both parents and child. ³

Yet, although the terms of Art 12 are relatively vague, they provide a generous acknowledgment of children’s entitlement to participate in decisions affecting them. Article 12 recognises that children mature at different rates and that their ability to express their views should be respected, even if, due to their age and relative immaturity, those views may not be eventually acceded to.

Following Singapore’s accession to the same, a fair amount of legislative and procedural changes have been introduced in our courts to deal with children in court proceedings.

In the Singapore courts, although there are many reported criminal cases involving child witnesses and how their evidence is to be assessed,⁴ we do not yet have any reported family law case on that issue.⁵ In practice, it is not uncommon for children to be allowed to give evidence in family matters.

There are also known cases of our High Court (before the jurisdiction for matrimonial matters was transferred to the Family Court) judges⁶ and some Family Court judges⁷ speaking to children in Chambers, generally in the absence of parties and solicitors.

Finally, we have cases where welfare reports are called for, which would then entail private interviews with parties and children by trained social workers. Such reports are generally only for the Judge’s eyes ⁸ and have been held ⁹ to be admissible notwithstanding the fact they contain hearsay, often including what the child or children involved have said.

The Laws Applicable to Children as Witnesses in Singapore

The Evidence Act (Cap 97) provides that all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind.¹⁰  It does not lay down an age restriction on children giving testimony and the test is therefore one of whether they understand the questions put to them and are able to provide rational answers.

The formalities of giving evidence are governed by the Oaths and Declarations Act (Cap 211). However, where a person required to take an oath ought not to, in the opinion of the court or person acting judicially, by reason of immaturity of age, he may, instead of taking an oath or making an affirmation, be cautioned by the court or person acting judicially to state the truth, the whole truth, and nothing but the truth.¹¹

Initiatives Already Undertaken by the Legal System in Singapore to Protect Child Witnesses

Although there are instances of children being called upon to give evidence in the Singapore courts, initiatives have been undertaken by the legal system in Singapore to try and achieve such a balance between the interest of the child and the competing public interest.

Taking of evidence

Amendments have been made to both our Evidence Act¹²  and Criminal Procedure Code ¹³ (Cap 68) allowing for evidence through live video or live television links to make it easier for children to give evidence, particularly where the child or young person is giving evidence on a charge of an offence committed against the child, so that the child does not have to face the accused in court.

Programmes and services

In the case of criminal proceedings, one of the initiatives of the Subordinate Courts of Singapore is the Vulnerable Witnesses Support Programme, ¹⁴ an initiative of the Multi-Door Courthouse, working with the Singapore Children’s Society, the Attorney-General’s Chambers and the Singapore Police Force. It is a free service designed to provide support to vulnerable witnesses who have to testify in public prosecutions in criminal cases.

Dichotomy Between Criminal and Family Proceedings

There seems to be a dichotomous approach taken by the criminal and family courts to children’s evidence.

Criminal proceedings

Children obviously have as much right to protection by criminal law as adults and its use clearly indicates that society will not condone their ill-treatment. Yet, there is a widespread perception amongst child protection practitioners that the criminal justice system, as presently organised, does not promote the welfare of children caught up in its processes and that its use may even victimise them over again.

Some even say that the criminal justice system casts a blight over the child protection system and at every stage of the child protection process, efforts to help the child recover from the effects of abuse may be undermined by the prospect of criminal proceedings against the abuser and that the drive to obtain a conviction may prevail over the needs of the child victim ¹⁵  and there are certain aspects of the criminal justice system which undermines its suitability for protecting individual children from abuse and results in direct conflict between the efforts of social workers and police officers and prosecutors:

• The criminal law focuses on protecting society and children as a class, not on the interest of the individual child victim or witness — the assumption is that catching and punishing the offender will automatically fulfill the victim’s welfare.
• Since the focus of criminal intervention is on punishing the wrongdoer, considerable emphasis is placed, not on the rights of the victim to comfort and support, but on those of the alleged perpetrator who may, after all, be innocent.
• Considerable effort is devoted to collecting evidence proving guilt beyond a reasonable doubt:
  1. that the offence actually took place; and that
  2. the right person has been identified as the perpetrator.
• At the same time, there may be attempts to ensure that the child’s evidence is not contaminated by efforts to comfort him or her through counselling or therapy.

In principle, both prosecution and defence in a criminal case can require the attendance of a child witness. The courts have taken a firm line over what they regard as the child’s duty to act as a witness in criminal trials, making it clear that even children who are wards of court have no special privileges in this respect. In Re R (minors) (wardship: criminal proceedings), ¹⁶. Lord Donaldson MR emphasised this approach in the following words:

Children, whether wards of court or not, are citizens owing duties to society as a whole (including other children) which are appropriate to their age and understanding ... it is not the wardship court, whatever the theoretical scope of its jurisdiction, to use that jurisdiction to interfere with the performance by the criminal courts of their lawful duties.

The principle is clear that the decision on whether or not to call a child witness rests with the prosecution and the trial judge, ¹⁷  regardless of whether or not criminal proceedings will be distressing for children and there may be no protection, even for those being called to give evidence against their own parents.

Rules of evidence

The fact that a child may be competent to give evidence because he is able to understand questions and give rational answers does not necessarily mean his evidence will be reliable and this is so whether his testimony is sworn or unsworn.

Thus, when dealing with a young witness, the rule in Singapore is that a child who gives evidence, whether sworn or unsworn, must be corroborated. The traditional concerns of whether the child had attained sufficient maturity to not be swayed by personal interests and fantasy and whether he had understood the importance of stating the truth on oath apply. Corroboration for evidence given by such young witnesses is required because it is considered unsafe to convict solely on that witness’s testimony.

The approach differs where the witnesses are older:

Where, therefore, evidence is given by older children whose intellectual faculties are more developed, the danger in convicting without corroboration is diminished. The rationale of the rule makes it very difficult to lay down a guideline as to the point at which a maturing individual, in his progress towards adulthood, crosses the line past which the judicial process considers his testimony credible without independent evidence in support of it and this must therefore be a matter for the judge’s assessment in each case.¹⁸

Obviously, a judge who has had the benefit of observing the demeanour and conduct of the child witness would be in a far better position to decide if corroboration is required in the circumstances of the case. An appellate court would not readily interfere with such a finding.¹⁹

In the case of sexual offences, where the complainant of sexual abuse is a child, the manner in which our courts treat the evidence of the child witness is no different from that accorded to the evidence of an adult witness. In other words, where the only evidence before the court was a bare allegation against a bare denial, the court could only convict the accused on the uncorroborated testimony of the child complainant if the court was satisfied that the child’s evidence was so reliable or unusually compelling. ²⁰

In determining the reliability of the evidence in question and hence the corresponding weight to be accorded to it, the court assesses the evidence in the light of all the circumstances of each case as well as the accumulated knowledge of human behaviour and common sense. Consequently, where the assessment of the overall reliability of the evidence of a child witness is concerned, it is prudent for the court to be mindful that children, depending on their level of intellectual maturity, might occasionally confuse fantasy with reality.

However, one problem which we must be aware of is that whilst some children make competent and credible witnesses, they will not necessarily understand abstract concepts like an ‘oath’ or ‘the truth’ or the technicalities of the legal system.

One study of child witnesses showed the kind of misconceptions which children have about the law. A six-year-old child offered the view that judges ‘teach people dancing’; a 10-year-old said of a jury, ‘They ask the criminal questions, then he gives up and they sit down’; one eight-year-old thought that a lawyer ‘gives money to the poor’; and some children in a similar US study thought a lawyer ‘loans money’, ‘sits around’, ‘plays golf’ or ‘lies’. ²¹

Family proceedings

The approach to using children as witnesses tends to differ considerably between the Family Court and the criminal courts. Children are generally not encouraged to give evidence in matrimonial proceedings, either by the court ²² or solicitors. This flows from a desire to keep the children away from the acrimony that the parties are already embroiled in, particularly where the purpose of adducing such evidence is to advance one party’s interest against the other, as opposed to the child’s interest.

Thus, where the proceedings pertain to issues unrelated to the children, for example, the actual divorce proceedings, ²³ issues involving the division of matrimonial assets, maintenance of the wife or alimony, there would generally be no good reason to involve the children.

Where the proceedings are in relation to a child directly, such as issues of custody, access, maintenance and protection orders for the child, the court is obliged to regard the welfare of the child as being the paramount consideration. ²⁴

However, the court generally obtains information about the child’s wishes from evidence of what the child has said to adults such as the parties or expert witnesses, from a court counsellor’s report or from information provided by a separate representative for the child. The judge may also interview the child in chambers either alone or in the presence of another person, such as the court counsellor. Anything said at the interview, although not strictly admissible in evidence, can often form the basis of the court’s decision.

Otherwise, leave of court would be required before a child may be called as a witness by a party. The rationale behind the reason to restrict the right or duty of the child to give evidence is to avoid the child being polarised with one parent in a family situation.

As a result of these rules, children rarely have a direct input into Family Court decisions. The child’s wishes are usually communicated to the judge through a third party.

The advantages to this procedure are that the child does not have to attend court and have their schooling disrupted, nor are they cross-examined by hostile lawyers and are instead interviewed about their wishes by a neutral person in familiar surroundings. On the other hand, it does mean that what the court receives is hearsay evidence of what the child has said. In a case where physical or sexual abuse is alleged against a parent, it means that this second-hand evidence is set against the evidence of an adult who can give evidence in court on oath denying it.

In most instances, judges generally require corroboration of evidence of a child before they are prepared to believe that sexual abuse has occurred. This would require something more than the child’s statement even though it has been repeated to a number of different people. ²⁵  In many of these cases, a welfare report would be called for and it is not uncommon for parties to present reports of child psychiatrists who have interviewed the child.

Effects of Children Testifying in Family Matters

In the Family Court, Family Court counsellors, child psychiatrists and psychologists skilled in the assessment of children, bring the children’s stories, attachments, wishes and frustrations to the court and can be subject to cross-examination on application of the parties where they are the opposing parties’ witnesses.

In addition, in difficult and acrimonious custody disputes and where there have been allegations of sexual abuse, children may have their own separate legal representation. It has been generally accepted that such expert evaluation offers more validity than the narrow examination and cross-examination by counsel for the parents.

Children have their own use of language, often through play; they need to develop trust in the interviewer and they are usually confused and bewildered by an impersonal court with its strange language and setting. Sexually abused children are unlikely to disclose such abuse in such a setting and if they have disclosed, they may retract.

With respect to the child’s wishes, a distinction has to be made between what a child wants and what a child needs. In contested divorce proceedings over custody or access, children are in the centre of a battleground between their parents. Increasingly, the majority of disputes are encouraged to be settled out of court by consent, with the help of Family Court counsellors and the mediation process, which involves parties and their counsel. However, there will be a small core of clients who are resistant to counselling even by the most competent counsellors. Such clients seek the decisions of the courts and they often remain locked in litigation for many years.

The emotional effects on children, who are already traumatised by the parental conflict, testifying in a court which uses adversarial procedures, may be seen as follows:

• For these immature, conflicted children, testifying against one or other parent could signal legal sanction to this method of resolving conflicts. It may entrench in the children, their parents’ anti-social attitudes towards one another, and children are likely to identify with such anti-social confrontational attitudes and values.
• For children who have been subjected to ‘brainwashing’, a court testimony may reinforce their already polarised position. Such children develop extreme loyalty to one parent to the complete exclusion of the other, to protect themselves against the conflicting pull of loyalties.
• For those children who remain unaligned and conflicted in their loyalties, testifying can only exacerbate such conflicts.

There has yet to be any systematic research studies and follow-up evaluations done on the actual effects of courtroom testifying on children in Singapore. In fact, there appears to be no actual statistics kept on cases involving children as witnesses in the Family Court. However, there have been many single case reports, particularly involving the criminal court, which raise concern that child victims may be victimised again by the court process.

In addition to the traumas of the strange courtroom, the child has to face the accused — sometimes the child’s own parent or relative. Counsel for the defence would invariably try to disqualify the child’s allegations, adding to the child’s belief that they will not be believed. Children cope with such stresses in a variety of ways. Some children freeze and are unable to remember events that they had previously recalled in great detail. Some retract their previous allegations. Very often, children fear retaliation by the defendant, particularly if threats had been made to the child. There is also humiliation and embarrassment about the nature of the allegations and the children may feel that they are the ones on trial.

However, some have argued a positive side of testifying has been put forward in that it may allow the child to take an active role towards mastering the trauma and towards seeing justice done. Single case reports, particularly with adolescents, have demonstrated this.

Is the Difference in Approach Justified or Desirable?

From the foregoing, it is clear that there is a curious inconsistency in the law’s treatment of children’s competence to give evidence of various kinds.

On the one hand, there is a considerable amount of paternalism shown by the courts in deciding whether children should be allowed to give evidence in custody proceedings and parental disputes. With family proceedings, paternalistic notions about protection reinforce judicial concerns to keep children out of what is perceived to be adult conflicts. But this approach is not matched by a similar concern to protect the child victim from the trauma of giving evidence at the criminal trial of a possible child abuser, even when it is known that the experience will be distressing.

In the case of criminal proceedings where the child is the victim or a crucial or only witness to the offence, public interest often overrides the choice of whether to call the child as a witness. In such cases, the liberty of the accused person is also at stake and there is therefore a case to be made out for the child’s evidence to be tested under the rigours of cross-examination.

Having said that, there have been efforts made to change the laws of evidence to avoid most children giving evidence in open court by allowing evidence by live video or television. The approach has been more of putting in place protective measures for the child, rather than to shield the child away from testifying altogether. But this still requires children to give their evidence orally and still have a duty to be available for cross-examination. Consequently, they would await their appearance as witnesses at criminal trials with all the attendant trepidation that an adult witness would experience, only multiplied several-fold.

It has also been widely recognised that children’s fear over appearing in court may be alleviated by being familiarised with the courts and what will be required of them. Considerable resources have thus been utilised to develop leaflets, witness information packs and pre-trial visits to help children overcome some of their apprehension during their wait for the trial. Unfortunately, these schemes cannot also wholly prepare children for the experience of actually appearing in court and confronting the accused, although research done in other jurisdictions has indicated that the use of television links does appear to reduce stress for the child. ²⁶ Moreover, the practice varies enormously regarding the preparedness of counsel and the judiciary to accept and use the advantages of technology.

However, in the case of family matters, whilst children should be given the opportunity to give direct evidence in matters which impact upon their interest, there must exist mechanisms to protect them from manipulation by two warring parties caught up in their own agenda. An understanding of family dynamics and appreciation of the long-term interests and welfare of the child, demand that the courts should, as far as is possible, shield the child from having to give what may be construed as partisan evidence in favour of one parent against the other, with all the attendant after-effects and strain that such evidence would place on the parent-child relationship.

Support for this view can be found in the approach taken by the Australian courts where children are rarely called upon or allowed to testify and the English courts, which have made it plain that a party may not demand as of right that a child attend a hearing if this would have an adverse effect on the child and if there are alternative means of introducing the child’s evidence into the proceedings. ²⁷

Whilst there is a role to be played in allowing these vital but fragile voices of children to be heard, there is sufficient justification for the more humanistic approach taken where children’s evidence is given in court in family proceedings ²⁸ and there is a need for the criminal courts to grasp the nettle and identify further areas of reform in how evidence in criminal matters may be similarly given.

Alternative Techniques for Obtaining Evidence of Matters Which Concern or Affect Children

As mentioned before, there are several alternative techniques used by the Family Court to obtain evidence of matters which concern or affect children. These consist of the interview of the child by the judge, the use of counsellor’s and welfare reports and separate representation. Let us study their efficacy.

Interviewing the child in chambers

The first of these tools is the interview of the child by the judge in his chambers.²⁹ This can take place with or without a counsellor being present should the judge wish it. The presence of the counsellor or such a person is designed to assist the judge and ensure that the child is questioned carefully and properly. It is also to assist the child to remain at ease during what may be regarded as a somewhat traumatic experience.

Some see this as one way of providing children with the assurance that their views in legal disputes are taken seriously. There are no practice directions or specific rules on the matter, but it has always been well-established that High Court, and now Family Court, judges are entitled to see children in the privacy of their chambers.

However, there have been doubts expressed as to whether such an interview benefits the court as it will be difficult for the court to pick up the nuances underlying children’s expressed views in a very short interview, however sympathetically carried out.

Although such interviews are confidential and the judge generally does not inform either of the parties of what is discussed in the interview with the child, the judge is entitled to use the interview and comments made by the child, as part of his decision-making process.

To that extent, parties may then find the whole process a mockery and even argue that since the parties or their counsel are not privy to such a conversation, the rules of natural justice are breached even when the information is passed on to the parents, albeit usually on a need-to-know basis, because the information cannot be tested subsequently in cross-examination. ³⁰

It is argued that if the child tells a judge anything which is influential to his decision, it is only fair that the parent should be given this information and have the opportunity to address the judge on it, but the contrary view is that children informed by the judge of his obligation to pass relevant information on to parents might well feel unable to provide the judge with a frank view of their choice of who they wish to live with.

While designed to protect the child, the absence of the parties may still result in trauma for the child as, depending on the outcome of the case, the party who has an unfavourable outcome would be tempted to lay blame on the child for the outcome.

In some cases, the party with whom the child is currently residing, be it the custodial parent or the parent having access, would, in anticipation of such an interview, subject the child to excessive coaching or threats or promises to secure a response in his or her favour. This has resulted in the manipulation of access timings so as to secure the child’s presence with that parent on the date of the hearing. ³¹

This procedure of interview is not as commonly used now in the Family Court in Singapore as it used to be in the High Court before the transfer of jurisdiction and preference seems to be to call for either a counsellor’s report or a social welfare report. Also, with the improvement in procedures for the separate representation of children in private proceedings, it is likely that this practice of the courts seeing children in private may cease altogether.

Counsellor’s reports

The next tools used are the counsellor’s evaluation reports or a social welfare report. ³²  A report is provided by a counsellor after the counsellor has interviewed the parents, the child or children and the relevant adults.

In the Family Court of Singapore, counsellors and psychologists of its Family and Juvenile Justice Centre may be directed to draw up one of two types of reports: ³³

• Custody Evaluation Report (‘CER’): to assist the court in custody disputes (ie which parent should have custody, care and control of the child),³⁴ and
• Access Evaluation Report (‘AER’): to assist the court in access disputes (ie the questions of whether access should take place, for how long, whether it should be supervised or not, whether there should be overnight access, whether the parent should be able to bring the child overseas for a holiday, etc). ³⁵

On the whole, these reports are reports in proceedings between parties relating to children — their guardianship, custody, access or their welfare in certain restricted areas, for example allegations of sexual abuse. The reports deal with such matters as:

• the wishes of children as to whom they should live with;
• whether they should see the non-custodial parent;
• the interaction with and relationships between parents and children; and
• the parenting skills exhibited and displayed by the competing parties.

These reports are usually regarded as the most helpful part of the decision-making process, particularly when they deal with statements made by the children. Although, theoretically, these reports should not be given any particular or special significance or weight as they are merely one piece of the evidence in the whole of the proceedings and the report is not merely rubber-stamped by the judge who hears the proceedings, judges generally place considerable weight on the same.

However, it should be noted that there is no obligation on the court to request for a welfare report in every case. The requests for such reports also inevitably lead to delay in the conclusion of proceedings, thereby creating further uncertainty for the child. By their very nature, there would be variations in practice in how the reports are prepared and there may be little correlation between the court’s own perception of how a welfare report has been prepared and the aims of the officer when preparing the report. The role of the welfare officer also does not involve acting as the child’s representative, but rather to provide the court with a report about the child’s background.

Separate representation

This last matter leads in comfortably to the topic of separate representation. The Family Court of Australia was the first court in the Commonwealth of Australia to have a separate representative as an in-built part of the court process. The role of the child’s legal representative has also been considered by the full bench of The Family Court of Australia. ³⁶

In Singapore, the Family Court has provided a scheme whereby, in contentious child custody suits, a lawyer is appointed for the child. The lawyer, known as a Court-Appointed Counsel (‘CAC’), is not the child’s advocate and need not advocate the child’s view, but is instead more of an amicus curiae who is well-versed in family law matters.

As the scheme is fairly new, there has yet been no known data collated on whether fulfilling a hybrid role of trying to forward the child’s wishes and acting in the child’s interest has resulted in any practical tensions.

There can, however, be an apparent conflict if the child’s wishes do not coincide with the counsel’s own view of her best interests. This can lead to frustration in children by the very system designed to protect them, where they see themselves represented by someone who is not obliged to carry out their instructions. Whilst the child may appreciate that the CAC is accurately conveying to the court the state of the child’s wishes and feelings, the child may strongly resent this, conveying to the court that these wishes should not be acceded to because they do not accord with their best interests.

Some Guidelines for Lawyers and Adjudicators to Consider When Dealing with Child Witnesses

What lawyers and adjudicators should appreciate in dealing with children as witnesses is the need for sensitivity. Lawyers and adjudicators can help children as witnesses by taking note of the following.

Children of all ages may have to give evidence in court, as either witnesses or defendants. They can be good witnesses, as long as those involved in the court process have an understanding of how children give testimony and appreciate the child’s perception of the court environment.

Given that most adults find having to give evidence a fairly traumatic experience, it is hardly surprising that children find the experience difficult to deal with. Most children have little idea of the role that courts play in society and they are unlikely to have much understanding of the language used in court. For many, their only legal contact may have been meeting the lawyer or knowing what a policeman looks like and their only experience of courtroom behaviour, like most adults, is probably through television.

Before the hearing

Lawyers should never assume that the child or young person is familiar with the process or the people involved in the hearing. Some may not understand who these people are, but do not want to appear stupid by asking. Others may rely on friends or family members who may give them the wrong information. Anticipating the questions and preparing the child for what he or she will see is the key to alleviating a child’s distress and stress.

In cases where the child or young person has to attend court, suggest that a parent or carer attend with them. Make sure advance notice is given or arrangements are made so as to minimise disruption to school or necessary arrangements for the child’s attendance during his or her school holidays are made.

A list of what to tell a child who is to be called as a witness, be it in the family or criminal court, would be as follows:

• The physical layout of the courtroom — a diagram usually helps.
• The role of each person in the courtroom — point out the expected seating arrangement in the diagram.
• The basic structure of the hearing — who will be appearing, who starts first etc.
• The role of the lawyer during the hearing — asking questions, objecting to questions etc.
• The role of the child or young person — highlight when the child will be expected to speak, who will be asking the questions, advise the child if the judge will be taking down evidence in long-hand and to speak slowly.
• An indication of the length of the hearing — and what to do if he needs to interrupt the proceedings.
• The range of likely outcomes for the hearing.

During the hearing

If the aim of the family and criminal justice system is to adduce as nearly as possible the truth about a set of events, the child witness undoubtedly needs special attention, and special care must be taken by anyone involved in presenting evidence from children.

A non-exhaustive list of what to be mindful of would be as follows:

• Consider whether the hearing needs to be in camera or special directions need to be sought as regards protecting the identity of the child witness, such as a direction that the child not be named or in any way identified.
• When questioning the child, avoid legal jargon — children need to understand what is being said in court so that they can grasp what the court is trying to establish.
• Ensure the child understands the question and knows that he can ask for it to be repeated — inform the child that he is allowed to say that he does not know or cannot remember. This can, however, be very difficult for children and they often say that they understand when they do not. In cross-examination, in particular, be sure that the child understands the question — children often give answers in court to questions they do not understand.
• Where it appears that this has occurred, the court should always ensure that the child is questioned further, so that it can be satisfied that the child fully understands what he or she is being asked. If the court does not do this, invite the court to do so or clarify the question in re-examination.
• Have an understanding of how children perceive, recollect and state facts to a court. Unlike adults who may be able to stand their ground when cross-examined on their evidence, children can very easily be unnerved and confused when questioned by authority.
• Do not badger a child witness and do not be afraid to object to unfair cross-examination of a young witness.
• Try and link the day or time of an event that the child has to recall to a significant event in the child’s life to give it connectivity.
• Ask open-ended questions and prompt, without leading, the child to tell the court what happened next — children usually need assistance in giving a good account of events, particularly in examination-in-chief.

After the hearing

In the case of adult witnesses, the lawyer usually has little to do with the witness after the hearing, but in the case of child witnesses called by you, some guidelines as to safety and support would be relevant even after the hearing:

• Ensure that the child is kept safe while in court — check if special facilities are available for the child whilst the child is waiting or after having finished with the testimony.
• If the lawyer or an assistant is unavailable to wait with the child, enquire as to whether a support person can be made available. Have information on available support services on hand and make use of them or explain their availability to the child’s caregiver.
• Where special directions are required after the hearing to ensure the child does not come into contact with either a party or another witness, make the necessary application for the child to be escorted to a safe place.
• Be aware of facilities where referrals for counselling or therapeutic services may be made to the appropriate agencies in suitable cases after the conclusion of the trial.

Conclusion

As people, children are entitled not only to protection of their welfare but also to respect for their human rights; however, the perception of children as individual citizens has been slow to catch on. As such, much of a child’s life is impacted upon by the decisions of adults, regardless of whether this impact was directly aimed at them or as part of the consequences of the decisions made by adults.

The impact of parental breakdown, the decisions of courts, the effect of government policy, legislation and guidance all have a direct and resounding impact on the lives of children.

Law can create minimum standards and formal accountability, but there must not be over-reliance on the law and we should resist the temptation to over-legislate for every possible aspect of the child’s relationships with the state and adults in authority.

Ultimately, children depend on the concern and support of adults beyond their own parents in order to flourish and thrive and no single agency can accomplish this alone. However, as players in the legal system, we can do our part by having a greater awareness of the issues concerning children when they become part of that system.

We would do well to remember the exhortation of Dame Elizabeth Butler-Sloss, President of the Family Division, at The Paul Sieghart Memorial Lecture this April ³⁷  at the British Institute of Human Rights:

All disciplines, including judges, legal practitioners, should be asking ourselves these questions: are we really child-oriented, or are we somewhat condescending and complacent about our approach to children? Are we thinking about what is best for them, including having regard to their perspective, or are we simply imposing our own perspective? What are we doing about the rights of the child, and particularly on hearing the voice of the child? Do we respond properly to children? This is an area in which we could undoubtedly do better, and it is one to which we should all be turning our attention.

Malathi Das³⁸
David Nayar and Vardan
E-mail: justicia@pacific.net.sg

Endnotes