Talking at the Victims’ Rights Conference Eve Farrelly spoke about some of the issues that children still face today about going to court. An alien environment designed for an adult to negotiate, children, who come to tell a difficult story, can find it all the more intimidating.
Talk at the Victims’ Rights Conference
April 2018
HIGHLIGHTING WHAT HELPS AND WHAT DOESN’T FOR CHILD WITNESSESS IN CRIMINAL TRIALS- AND HOW CAN WE FIX IT.
Talking at the Victims’ Rights Conference Eve Farrelly spoke about some of the issues that children still face today about going to court. An alien environment designed for an adult to negotiate, children, who come to tell a difficult story, can find it all the more intimidating.
Delays
The issue of delays is something that CARI have been reporting and advocating about for many years now. Important to note, CARI understands that delays within the Criminal Justice System are at times necessary to ensure due process. The delay discussed here are not those rather the avoidable and lengthy ones that children experience.
In 2015 we reported that of the 36 children that we supported who went to court in that year alone, 30 cases did not go ahead on the trial date. They were either given new trial dates or were put back on the list to be mentioned on another date. This meant that 6 of the 36 cases started on their actual trial date.
To attend trials, young people have to take time off school, have to prepare both emotionally and psychologically for the experience. Families have to take time off work, organise child minding and very often they have to travel long distances. These types of delays can be very upsetting and sometimes retraumatising for young people. The top two reasons that trials that we supported were delayed in that year (2015):
1. Court related matter: insufficient resources to conduct a trial e.g. no judges being available on the date.
2. Defendant matter; defendant needing more time
Here are examples of three children’s experiences from that year alone:
CHILD 1
We supported a young boy who was aged 9 at the time of reporting the crime. His trial was delayed on five different occasions. When each length of delay was added up it cumulated to just over 2 ½ years. The child was 14 by the time he gave his witness testimony on the statement he made aged 9. On one occasion the delay was caused because there was no judge available on the day, another occasion was a request from the defence team. Found guilty
CHILD 2
We supported a young girl who was aged 14 at the time of reporting the crime, which was an intrafamilial case. Her trial was delayed on three different occasions. When each length of delay was added up it cumulated to 2 years in time.
The child was an adult of 19 by the time she had to give her evidence on the statement that she made at 14. Because she had become an adult by the time she gave her evidence she had aged out of her legislative right to video link and had to give her evidence and be cross examined in the courtroom, beside the alleged offender. On one occasion the delay was caused due to the defence claiming the defendant had mental issues, another occasion was because counselling notes were being sought. Found not guilty
CHILD 3
We supported a young girl who was aged 13 at the time of reporting the crime, which was an intrafamilial case. The trial was delayed on 6 different occasions. When each length of delay was added up it cumulated to 2 years in time. The girl was 17 by the time she gave her evidence. On one occasion the delay was caused because of an administrative deadline delay with the defence, on another occasion the DVD player didn’t work in the courtroom. Found guilty.
What is a lengthy delay and its potential impact
In 2016, we took 23 cases and analysed their dateline.
In the 23 cases that were analysed:
1. The average age of the child at the time they experienced the abuse was 11 years old.
2. The average age for the client when they contacted CARI was 15 years old.
3. The average age for the client when their trial was finished was 16 years old.
What our records showed was that children on average spend 5 years from between the crime taking place to the end of the criminal proceedings. It is our view that a 5-year time span out of a child’s life is too long and can lead to the secondary victimisation of our already extremely vulnerable.
It is very important to note at here, time works very differently for children than it does for adults. Five years in an adult’s life may not see a huge change, maybe you are in a different job, maybe you have a new mortgage and a few new grey hairs to go with it. What does five years’ time look like for a child, it can see children go from wearing a baby grow to wearing their first school uniform, from play dates to first dates or from sitting their school entrance exam to casting their first vote.
As stakeholders in the criminal justice system it is our responsibility, all of our responsibility, to embrace this unique feature when dealing with this type of witness. One of the ways in which to achieve this is to have a child’s evidence and cross examination pre-recorded in close proximity together.
Supportive Aids
Part of our job as accompaniment officers is to address and work with anxiety. Those that work with children will know that you don’t work with children in isolation. Wherever there is a child there is also that child’s support network, which is often the young witness’s family and they bring with them their own anxiety as well.
Therefore, when we first come into contact with a family we are presented with many different layers of anxiety, from multiple people anxious about different things that are enmeshed and intertwined with each other.
Children wear a heavy burden – that which is placed on them as a witness and that which is placed on them by themselves:
Our experience of supporting children and families through this type of experience has taught us a little about what they worry about:
CHILD
1. Am I going to see him/ is he going to see me
2. What if I’m not believed
3. What if I get upset
4. What if I get angry
5. What if my mam gets upset
6. When will this be over
7. I’m more worried about my mom and how she will cope
8. I want him to go to jail, if he doesn’t, it will be my fault
9. I don’t want him to go to jail, if he does, it will be my fault
FAMILY
1. What happens if she reacts this way on the stand
2. How do I tell her she’s in court
3. Am I going to be with her when she is giving her evidence
4. Can I see her
5. Will I see him
6. What will happen if it goes the other way
7. When will this be over, she’s waiting to start her life
When child witnesses are young, the parent/child bond can become very nervous at the thought of the child and parent being separated in the evidence and cross examination part of the trial, here is where supportive aids can work wonders.
One of the ways in which we deal with this is to suggest to the mother (as its typically the mother) that she and the child go and do a special day trip, to buy something small (gem, or ring) for each of them. To decide that whenever one feels anxious that the other isn’t near, to give that gem or ring a little rub and that way they can feel close. This works wonders for both child and parent.
However, this is not established practice within criminal proceedings and therefore there is a lot of uncertainty around it. We supported two cases recently where the option of bring a supportive aid of choice in was caused uncertainty:
CHILD 1
We supported a young child witness through a criminal trial in an interfamilial case. She had a pet dog that she was very attached to and had asked if she could have the dog with her giving evidence. This was not allowed.
CHILD 2
We supported a young child witness through a criminal trial in an interfamilial case. This child had asked if they could have their bear with them when they gave evidence. There was concern at the time that the visual of that would be claimed by the defence as the prosecution trying to highlight the child’s vulnerability and therefore inciting bias with the jury. The decision in the end was that the young person could bring it in but to keep it out of sight of the screen.
The final decision was that it was thought that putting the child under that pressure along with the anxiety of giving evidence and being cross examined would be too much, so the teddy stayed out.
Supportive aids can be a powerful way to deal with the anxiety of a criminal trial for both children and their families.
Where there is an absence of direction or policy with anything, there comes with that a confusion and uncertainty in making a call on something. Everyone wants to provide their best professional service in these cases. No one wants to put themselves in a position where their decision may jeopardise the case.
We should address the use of supportive aids for children and provide clear direction so that when we are engaging with children whether as a barrister, a guard, a judge or a support person we are able to give clear outline of what is available to children, should they need it.
Not every child will want to bring something in, not every child will need to, but I think that we have an opportunity here for all relevant stakeholders of the judicial system sit down, discuss and flesh out the potential of supportive aids so that tomorrows young witness at least has a choice.