Justice for child victims and witnesses of crime guidelines for implementation
The theme of the IAP’s 3rd Annual Conference in Dublin, Ireland in 1998 was “Secret Crimes: Crimes against Children”. A number of projects developed out of the work of this conference, one of which was the development of the Model Guidelines for the Effective Prosecution of Crimes against Children (IAP Best Practice Series 2). This project was undertaken as a joint venture with the International Centre for Criminal Law Reform and Criminal Justice Policy (ICCLR) based at the University of British Columbia in Vancouver, Canada. The working group was chaired by the ICCLR’s then Executive Director, Daniel Prefontaine, QC.
Following the publication of the Model Guidelines, the International Bureau for Children’s Rights (IBCR) in Montreal, Canada decided that similar guidelines were needed for all criminal justice professionals and they in turn established a project to develop these. I was honoured to be asked to join the steering committee for this project and work has now been in progress for nearly a year.
There follows a draft of these guidelines which are now being circulated for comment. Please could you consider this and let me have comments by 10 December 2002.
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Justice for child victims and witnesses of crime guidelines for implementation (FINAL DRAFT)
The following Guidelines are not intended to describe in detail a model system of justice for child victims and witnesses of crime. They seek only, on the basis of the general consensus of contemporary thought, of relevant international and regional norms, standards and principles to set out what is generally considered as good practices in the implementation of the rights of child victims and witnesses of crime.
In view of the great variety of legal, social, economic, cultural and geographical conditions of the world, it is evident that not all of these Guidelines can be fully implemented in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum acceptable principles and standards.
On the other hand, these Guidelines cover a field in which thought is constantly developing. They are not intended to preclude experiment, provided these are in harmony with the principles and seek to further the purposes which derive from the text of these Guidelines as a whole.
These Guidelines aim at providing a practical framework to achieve the following objectives:
To guide professionals working with child victims and witnesses of crime in their day to day practice;
To assist those caring for children in dealing sensitively with child victims and witnesses of crime and to provide them support in their role as caregivers of children;
To assist governments, international organizations, agencies, NGOs and other interested parties in designing and implementing legislation, policy, programs and practices that address key the issues related to child victims and witnesses of crime;
To assist States in the review of their national and domestic laws, procedures, and practices so that these laws, procedures and practices ensure the full respect of the rights of child victims and witnesses of crime and in implementing holistically the Convention on the Rights of the Child.
Considering that the rights and best interests of children are fundamental principles for our society;
Affirming the rights of victims and witnesses as recognized in international and regional human rights instruments and more specifically the right to information, the right to participation, the right to protection, and the right to reparation;
Recalling the rights to which children are entitled and recognizing that children are vulnerable and require special protection because of their age, level of maturity and individual special needs;
Convinced that respect for the dignity and the physical and emotional integrity of children is fundamental to the well-being of society and that the criminal justice process should seek to minimise causing any unnecessary additional harm or having a negative developmental impact on child victims and witnesses of crime;
Seeking to draw upon, implement and build upon international human rights norms, standards and principles addressing the issue of child victims and witnesses of crime in the criminal justice system;
Noting the increasingly transnational nature of crime and the need for specific measures to address the protection of child victims and witnesses of crime;
Stressing that all States Parties to international and regional instruments have a duty to fulfil their obligations, and emphasizing, in particular, the importance of the full legal obligation to the implementation of the Convention on the Rights of the Child and its Protocols;
Considering that international and regional human rights instruments have largely focused on child delinquent rather than on child victims and witnesses of crime;
Noting the need for guidelines for professionals who are in contact with children, especially during criminal proceedings to which they can refer in addressing the issue of child victims and witnesses of crime;
Considering that the goal of these guidelines is to ensure the implementation of children’s rights within the context of criminal justice while ensuring the right of the defendant to a fair trial;
Bearing in mind the wide variety of legal traditions and the need to develop guidelines that respect those traditions;
Stressing that these guidelines are principally applicable to criminal procedures and should be adapted to circumstances at national and regional levels but noting that they are also applicable to non-criminal processes in different fields of law including, but not limited to, the fields of custody, divorce, child protection, mental health, citizenship, immigration, and refugee law;
The phrase “child victims and witnesses of crime” referred to in these Guidelines denotes children, under the age of 18, who are victims of crime or witnesses of crimes regardless of their role in the prosecution of the alleged offender.
The expression “professionals” referred to in these Guidelines covers the various entities and persons to whom these guidelines are applicable. “Professionals” refers to persons, who within the framework of their work are in contact with child victims and witnesses of crime. This includes but is not limited to the following professionals: child advocacy center facility staff, child and victim advocates and support persons, child protective service practitioners, child welfare agencies staff, domestic violence agencies, judges, law enforcement officials, defence lawyers, medical and mental health professionals, prosecutors, and social workers.
In all cases involving children, and in order to ensure that the best interests of the child are given primary consideration, professionals and others responsible for the well-being of children must respect the following cross-cutting principles as stated in the Convention on the Rights of the Child and as reflected in the work of the Committee on the Rights of the Child:
Dignity. Each child is a significant and valuable member of society and, as such, deserves to be treated with respect dignity and privacy.
Non–Discrimination. Each child has the right to be treated fairly and equally, regardless the child's or his or her parent's or legal guardian's race, colour, sex, sexual orientation, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Participation. Each child has the right to express his or her views, opinions and beliefs freely in all matters, in his or her own words and contribute to the decisions affecting his or her life, including those taken in any judicial processes and to be taken into consideration.
Protection. Each child has the right to life, survival and to be shielded from any form of harm, abuse or neglect including physical, psychological, mental, and emotional abuse and neglect.
Harmonious development. Each child has the right to a harmonious development and to a standard of living adequate for physical, mental, spiritual, moral and social growth. In case a child has been traumatized, every measure should be taken to enable the child to resume normal development.
I. Child victims and witnesses of crime have the right to be treated with dignity and compassion
Every professional should ensure that child victims and witnesses of crime are treated in a caring and sensitive manner throughout the criminal justice process, taking into account the child’s personal situation, age and level of maturity, in full respect of his or her physical, mental and moral integrity.
In order to prevent child humiliation and retraumatization, examinations and interviews should be conducted by adequately trained professionals who proceed in a particularly careful, respectful and thorough manner.
Interference in the child’s private life should be limited to the minimum needed at the same time as high standards of evidence collection are maintained in order to ensure fair and just outcomes of the judicial process.
II. Child victims and witnesses of crime have the right not to be discriminated against
No child victim or witness of crime should be discriminated against on the basis of the child's or his or her parent's or legal guardian's race, colour, sex, sexual orientation, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. It should be noted, however, that services available to child victims and witnesses and their families should be sensitive to the child’s age, wishes, understanding, gender, ethnic, cultural, religious, linguistic and social background, as well as to the special needs of the child, including disability, and that professionals should be trained and educated about such differences.
Additionally, no child should be discriminated against solely on the basis of his or her age. Every child has a right to be initially treated as a capable witness and his or her testimony should be presumed to be valid and credible at trial until proven otherwise and as long as his or her age and maturity allow him or her to give intelligible testimony, with or without communication aids.
III. Child victims and witnesses of crime have the right to be informed
From their first contact with the criminal justice system and throughout all the proceedings especially where serious crimes are involved, child victims and witnesses of crime, their families, and/or their legal representatives, have the right to be kept informed promptly and in a language they fully understand of the following:
Their rights under the Convention on the Rights of the Child and other relevant provisions under regional and international instruments;
Their rights as outlined in these Guidelines;
The availability to health, psychological, social and other relevant services as well as the possibility of obtaining such services along with practical and legal advice, compensation and emergency financial support, where applicable;
Their role in the criminal proceedings including the time and manner of testimony, and more specifically the manner in which “questioning” will be conducted both in the investigation and in the trial;
The progress and the disposition of the specific case including the apprehension, arrest, custodial status of the defendant, the prosecutorial decision and relevant post-trial developments; and the outcome of the case;
The existing support services where relevant to giving evidence;
The specific places and times of hearings and other relevant events;
The existing opportunities to obtain reparation from the offender through the criminal proceedings and alternative civil proceedings;
The responsibilities of professionals and existing complaint mechanisms, and available alternatives if these responsibilities are not met, as well as the right to request decisions to be reviewed by a competent authority, where applicable.
IV. Child victims and witnesses of crime have the right to express their views and concerns
In circumstances where it is determined that child victims and witnesses of crime have sufficient understanding of the nature, meaning and implications of the legal process, the relevant authority should make every effort to enable child victims and witnesses of crime to express their views and concerns and where appropriate give due regard to these views and concerns.
To this end, duly sensitized and trained professionals should:
Ensure that child victims and witnesses of crime are kept adequately informed of the issues noted under the section III above of the guidelines;
Consult with, as appropriate, child victims and witnesses of crime about the processes of all stages in their case, including: the status of the investigation; court dates, times and places; disposition; and all other relevant steps;
Inform and consult with, as appropriate, child victims and witnesses of crime about substantive processes in their case, including: services available; court accompaniment; right and manner of testimony; court room attendees;
Consult child victims and witnesses of crime, as appropriate, and where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system, about compensation; proposed penalty and punishment for the accused; and confronting the accused;
Enable child victims and witnesses of crime to express freely and in their own manner, their views and concerns regarding how they feel, how they want to testify, and the manner in which they have provided their testimony.
V. Child victims and witnesses of crime have the right to effective assistance
Child victims and witnesses of crime and family members, where appropriate, should have access to assistance given by duly trained and sensitized professionals that meet their needs, such as financial, counselling, health and social services, reintegration, physical and psychological recovery services, as well as any assistance which enables their effective participation in all processes involved with the criminal justice process.
Child victims and witnesses of crime should benefit from assistance to express their views and concerns freely and in their own manner. The weight of the narrative of child victims and witnesses of crime should be enhanced through the assistance of support persons such as, intermediaries, child advocates, guardians ad litem or any person assisting the child in order to improve the communications and understanding of both the child and the listener(s).
Wherever appropriate, procedures should be developed and implemented to make it easier for children to give evidence in court by improving the communications and understanding for both the child and the listener. Measures could include, but are not limited to, permitting a child advocate, support person, legal representative, psychologist or family member to attend the testimony and/or use testimonial aids to facilitate and elicit testimony. Such testimonial aids could include, but are not limited to: anatomically explicit dolls; videotaped statements; use of closed-circuit television or video-link; leading questions on direct examination to encourage full disclosure; and an intermediary/communicator who will translate and interpret legal language into a more child-friendly form, which will assist the child in giving evidence and help him or her communicate with legal representatives. The foregoing applies at both the pre-trial and trial stages.
VI. Child victims and witnesses of crime have the right to privacy
A child’s privacy and confidentiality are of prime importance and as such, the release of information about child victims and witnesses of crime to a third party should be prohibited unless disclosure is in the best interests of the child. Confidentiality of files and records should be maintained, where possible under law. For example, wherever appropriate, names, descriptions and any other identifiable information which may lead to the identification of the child should be erased from any extracts given to third parties.
Wherever possible under national law in conformity with international human rights standards and norms, child victims and witnesses of crime should be granted anonymity by the competent authority. The identity of a potential child witness should be protected as soon as he or she comes forward or as soon as the child has been identified. Without prejudice to the rights of the defence, priority should be given to guaranteeing anonymity. Priority should be given to guaranteeing anonymity except from the defendant and his or her legal representative. If this is not possible, the option of revealing the identity of child victims and witnesses of crime at the latest possible stage of the proceedings and/or releasing only selected details should be considered.
Information that may lead to the identification of child victims and witnesses of crime to the media or the public should be suppressed, unless it is in the best interests of the child not to do so. Where prohibition is contrary to the fundamental legal principles of the State, such identification should be discouraged. With due consideration to the best interests of the child and the interests of justice, and without prejudice to the right of the defence to a public trial, judges should exclude the media and the public from the courtroom during the child’s testimony.
VII. Child victims and witnesses of crime have a right to be protected from harm.
Professionals should take measures to minimize inadvertent intimidation of the child victims and witnesses of crime by the judicial system and avoid their retraumatization. More specifically, professionals should be sensitive to the fact that the criminal justice process, as well as those involved in it, may have a traumatic effect on child victims and witnesses of crime. Professionals should strive to counter that effect. Specifically, children should be protected from the potential traumatic effect of the judicial process, namely of the proceedings and of the alleged perpetrator and his or her defence team.
With regard to minimizing the unnecessary harm by the proceedings, professionals should provide child victims and witnesses of crime certainty, avoid delays and assure speedy trials, allow modifications of evidence, undertake interview and investigative procedures where possible under law and, in any way possible, avoid repetition of interviews, investigations and unnecessary contact with the judicial proceedings. Specifically:
Professionals should plan and provide measures to ensure that child victims and witnesses of crime have a sense of certainty as to the timing of the different proceedings, the manner in which they will provide their testimony, and their role in the judicial process. Children’s participation in hearings and trials should be planned ahead of time and every effort should be made to ensure continuity in the relationships between children and the professionals in contact with them throughout the process;
Professionals should act speedily and avoid any delays, except when it is in the child’s best interests to do so. This includes expeditious investigations and procedures and laws that give priority to cases involving child victims and witnesses of crimes;
Appropriate authorities should develop techniques and procedures in order to avoid intimidation by non-child-friendly procedures and processes including facilitating testimony of a child. Such measures include : child-friendly interview rooms, alteration of the courtroom environment, recesses during testimony, scheduling hearings at an appropriate time of day with due regard to the age and maturity of the child and providing an on-call system to minimize unnecessary trips to court;
Special procedures for collection of evidence from child victims and witnesses of crime should be implemented in order to reduce the number of interviews, statements, hearings, and specifically, unnecessary contacts with the judicial proceedings. Professionals should record all statements and interviews throughout the entire process in order to preserve evidence.
With regard to the alleged perpetrator and his or her defence team, child-friendly procedures should be developed:
With due respect to legal traditions and practices, direct contact should be avoided between child victims and witnesses of crime and the alleged perpetrators. Judges, police officers, attorneys and other professionals should ensure that the child does not come into direct contact with alleged perpetrators at any point in the process. This includes protection from cross-examination by the alleged perpetrators themselves, if compatible with the legal system and with due respect to the rights of the defence. Wherever possible, and as necessary, child victims and witnesses of crime should be interviewed out of sight of the alleged perpetrator and separate waiting rooms and areas for this purpose should be provided for;
At trial, and in order to limit intimidation by the alleged perpetrator and his or her defence team, judges should, where permitted to do so under law, be allowed and encouraged to provide alternative arrangements for testimony, including screens, closed circuit television, videoconferencing, video-link, and telephone-conferencing. Judges should also exercise supervision and take appropriate measures to ensure that child victims and witnesses of crime are questioned in an appropriate manner;
In order to facilitate child testimony and reduce intimidation, and with due respect to the alleged perpetrator’s right to a fair trial, testimony at trial should be adduced in a child-friendly manner and in a child-sensitive language. Such methods include allowing questions from the defence through “questioning leaders,” hearings with the investigative judge in private, exceptions to the hearsay rule, and others.
VIII. Child victims and witnesses of crime have the right to safety
Professionals should take measures in order to protect the safety of child victims and witnesses of crime before, during and after the criminal proceedings. Specifically, mechanisms should be in place to ensure the safe and swift reporting and detection of crime as well as safety for child victims and witnesses from the alleged perpetrator.
Child-focused facilities for child victims and witnesses to report crime should be established and private persons and professionals in contact with children should be mandated to notify the police or other designated agencies if reasonable grounds exist to believe that a child has been harmed, is being harmed, or where harm is likely to occur. Procedures and protocols should also be drawn up to allow persons subject to professional secrecy to be able to disclose cases of crimes against children, on the basis of established procedures and in a manner consistent with professional ethics, inter alia, by the enactment of legislative provisions for this purpose or the adoption of similar provisions in codes of professional conduct.
Where child victims and witnesses may be the subject of intimidation, threats or harm from the suspect or the accused, detention of the suspect or the accused or other appropriate conditions should be in place to ensure the safety of the child. Professionals should be trained in recognizing and preventing intimidation, threats and harm. Such safeguards can include specific measures dealing with the alleged offender including: court-ordered restraining orders supported by a registry system; detention for the accused; bail conditions; house arrest for the accused; and also, wherever possible, child victims and witnesses of crime should be given protection by police or other relevant agencies.
IX. Child victims and witnesses of crime have the right to reparation
The right to fair and adequate compensation, including the right to full rehabilitation, reintegration and recovery, should be given due weight in all procedures and decisions involving child victims and witnesses of crime, and wherever possible, procedures for obtaining reparations should be user-friendly for child victims and witnesses of crime. In that order, combined criminal and reparations proceedings, automatic enforcement of reparations orders could be considered.
Rehabilitation and reintegration should include medical and psychological care as well as legal and social services. More specifically, physical and psychological recovery and the social reintegration of child victims and witnesses of crime should be promoted as of the beginning of the legal proceedings. This includes: short and long-term assistance; therapy; counselling; provision of medical treatment; provision of social reintegration services; provision of psychological and physical recovery service; and emphasis on community-based rehabilitation.
X. Professionals should be trained and educated in order to deal effectively and sensitively with child victims and witnesses of crime Specialized units, services and specially trained personnel and/or others experienced in the special needs of children should be made available to child victims and witnesses of crime.
Adequate training, education, and information should be made available to front-line professionals, criminal justice officials, practitioners and professionals working with child victims and witnesses of crime with a view to improving and sustaining their methods, approaches and attitudes.
This training should involve:
Knowledge of relevant human rights norms, standards and principles;
Definition of the principles and ethical duties of their office;
Knowledge of signs and symptoms that point to evidence of crimes against children;
Learning crisis assessment skills and techniques, especially for referral to agency personnel with an emphasis placed on the need for confidentiality;
Understanding the impact, consequences and trauma of crimes against children;
Knowledge of special measures and techniques to assist child victims and witnesses of crime in the criminal justice system;
Knowledge of cross-cultural and age-related linguistic, religious, social and gender issues;
Learning appropriate communication skills;
Learning interviewing techniques that minimize any trauma to the child while maximizing the quality of information from the child;
Learning skills to deal with child victims and witnesses of crime in a sympathetic, understanding, constructive and reassuring manner;
Learning how best to present the evidence and to question child witnesses; and
Learning about the roles and methods of professionals working with child victims and witnesses of crime.
XI. Professionals should achieve a level of cooperation so that child victims and witnesses of crime are dealt with efficiently and effectively
Professionals should make every effort to adopt a multi-disciplinary approach by familiarizing themselves with services available to children, such as victim support, advocacy, economic assistance, counselling, health and social services. This multi-disciplinary approach may include inter-agency protocols for the different stages of the judicial proceedings that encourage cooperation amongst agencies that provide services to child victims and witnesses of crime, as well as any other form of multidisciplinary work that includes police, prosecutor, medical and psychological personnel working in the same location.
International cooperation should exist between States and all sectors of society both at the national and international levels including, mutual assistance for the purpose of facilitating the collection and exchange of information and the investigation and prosecution of transnational crimes involving child victims and witnesses of crime.
Implementation and monitoring
Professionals should utilize these Guidelines as a basis for developing written policies, standards and protocols aimed at assisting child victims and witnesses of crime involved in the judicial process.
Professionals should, wherever possible together with other agencies in the criminal justice system, periodically review and evaluate their role in the criminal justice system in ensuring the protection of the rights of the child and the effective implementation of these Guidelines.