Child Witnesses
Definition
2.16 Section 16 Youth Justice and Criminal Evidence Act 1999 as
amended by the Coroners and Justice Act 2009 defines child
witnesses as being under the age of 18.
Preliminaries
2.17 A consideration of child protection issues, consent, medical examinations
and psychiatric/psychological assessments necessarily informs the
planning process as it applies to child witnesses. Each of these matters
will be considered in turn prior to considering the information that should
ideally be obtained before planning an interview with a child.
The Context of the Allegation: the Intersection of the Child
Protection and Criminal Justice Systems
2.18 Any video-recorded interview serves two primary purposes. These are:
•Evidence gathering for use in the investigation and in
criminal proceedings; and
•The evidence-in-chief of the witness.
In addition, any relevant information gained during the interview
can also be used to inform enquiries regarding significant harm
under Section 47 of the Children Act 1989 and any subsequent
actions to safeguard and promote the child’s welfare, and in
some cases, the welfare of other children.
2.19 Some information may be common to both purposes, but there will be
issues specific to each to be considered at the planning stage. A
video-recorded interview may additionally serve a useful purpose in
informing any subsequent civil childcare proceedings, or in disciplinary
proceedings against adult carers (e.g. in residential institutions), and
its potential value for these too should not be overlooked.
2.20 At a minimum, such as instances in which the child has experienced no
previous contact with the public services, the investigating team in child
protection cases should include representatives from both the police and
the local children’s services authority. It may also be important to involve
primary health care or educational professionals who know the child. For
children who have had past or current involvement with that local children’s
services authority, useful information may already have been provided
from different professionals or may be obtained from other adults who
know the child (e.g. parents, carers, teachers, educational psychologists,
youth workers, occupational therapists), and it may be that other
individuals are offered a more active role in the planning process for the
investigation (e.g. facial composite operators where the suspect
is not known to the child).
2.21 Whenever suspicion has arisen that a child has suffered, or is likely to suffer,
significant harm, there will be a strategy discussion or meeting involving the
local children’s services authority, the police and other professionals as
appropriate, e.g. paediatrician, child and adolescent mental health services
(Working Together to Safeguard Children (Department
for Children, Schools and Families, March 2010), and Safeguarding Children:
Working Together Under the Children Act 2004 (Welsh Assembly
Government 2006)). If enquiries under Section 47 of the Children Act
1989 are pursued following the strategy discussion/meeting, then the core
assessment undertaken using the Framework for the Assessment of
Children in Need and their Families (The Stationery Office, 2000) will
provide considerable information about the child and their carer(s), see
Appendix D for a summary of the assessment framework. The investigative
interview and criminal investigation will run alongside such Section 47
enquiries and the interviewer(s) might, therefore, have access to detailed
information about the child that can be drawn upon when planning and
conducting the investigative interview, depending upon the exact timing of
the interview in relation to the Section 47 enquiries.
2.22 Where it has been agreed by the police and children’s social care, in a
strategy discussion/meeting, that it is in the best interests of the child that a
full criminal investigation be carried out, the police are responsible for that
investigation, including any investigative interview (video-recorded or
otherwise) with the victim (recommendation 99 of the Victoria Climbie
Inquiry Report). Having responsibility for the criminal investigation does not
mean that the police should always take the lead in the investigative
interview. Provided both the police officer and social worker have been
adequately trained to interview child witnesses in accordance with the
guidance set out in this document, there is no reason why either should not
lead the interview. The decision as to who leads the interview should
depend on who is able to establish the best rapport with the child. In
circumstances where a social worker leads the interview, the police should
retain their responsibility for the criminal investigation by ensuring that the
interview is properly planned and that the police officer has an effective role
in monitoring the interview (see paragraphs 2.87 and 2.88). Similarly, where
a police officer leads the interview, the local authority should retain their
duty to make enquiries under Section 47 of the Children Act 1989 by
ensuring that the interview is properly planned and that the social worker
has an effective role in monitoring the interview.
2.23 Enquiries should be carried out in such a way as to minimise distress to
the child and to ensure that families are treated sympathetically and with
respect. The decision as to whether to conduct a joint investigative
interview or joint visits should be determined by what is in the best
interests of the child, for example by limiting the number of occasions
that the child has to relate an account of what has happened to them or
reducing the frequency of agency visits to the child’s home. Investigators
should consult Local Safeguarding Children Board safeguarding children
procedures about how enquiries relating to children suffering or likely to
suffer significant harm (under Section 47 of the Children Act 1989) and
associated criminal investigations should be conducted and the
circumstances in which joint enquiries are necessary and/or appropriate.
2.24 Different circumstances experienced by the child prior to the
interview will have implications both for the amount of knowledge
that may already be available about the child to be shared
between agencies, and subsequently for the manner in which any
investigative interview is planned and proceeds:
•Some children will hitherto have been unknown to the local children’s
services authority, but known to their GP, health visitor or school;
•Some children may not be known to the local children’s services
authority, but may be known, for example, to child and adolescent
mental health services or education professionals because of
emotional or behavioural problems, or special educational needs;
•Some children will be known to the local children’s services
authority as open cases or as previously open cases, as well
as to health and education services.
2.25 Whatever the child’s circumstances, the police officer, the
children’s social care worker and any other members of the
investigating team should give a proper explanation of their roles
to the child and their carer. The child’s knowledge and
understanding should be monitored throughout the investigation.
2.26 Children who have previously been unknown to the local children’s services
authority and the police are likely to have the least understanding of the
interviewing process, and of the nature of professional interventions.
The way in which the purpose of the interview and the roles of the
investigating team are explained to the child and their carer(s) will
need to take account of the fact that they have had no previous
contact with public services regarding child protection concerns
about a child’s safety or welfare.
2.27 Children who have previous experience of public services may be more
knowledgeable about the roles of different personnel, though their
experiences will have varied depending on their individual circumstances.
However, no assumptions should be made about a particular child’s level
of knowledge of public service personnel, especially children’s social care
workers, who may have been involved with the family for a number of
possible reasons (e.g. children in need services, services for disabled
adults, or adults with mental health problems). If there have been
concerns about a child’s safety and/or welfare or current concerns
have resulted in the consideration of an investigative interview, an
initial assessment of the child’s needs and their family members will
have already been undertaken by the local children’s services
authority.
2.28 Consideration should be given to holding a discussion between the
investigating officer and the CPS where necessary to discuss what Special
Measures might be needed to assist the witness before and during the trial
(see Early Special Measures Discussions Between the Police and the
Crown Prosecution Service (Office for Criminal Justice Reform 2009)).
Consent
2.29 When assessing how a child’s evidence should be obtained
interviewers should:
•Consider each child as an individual;
•Assess the child’s individual needs whatever the offence;
•Take account of the following characteristics of the child
• Age
• Gender
• Culture
• Religion
• Physical and/or learning disability
• Confidence and developmental level;
•Consider the views of the child and their carer.
2.30 When considering the needs of child witnesses interviewers should NOT:
•Assume that an older child will necessarily be more
confident than a younger one;
•Assume that an older child will always want to give evidence
live in the court room;
•Make assumptions based on the child’s demeanour (for
example, some children may behave with a degree of bravado
even though they are actually experiencing a great deal of
angst at the prospect of giving evidence).
2.31 The law presumes that child witnesses under 18 will normally give their
evidence outside the courtroom by playing a video-recorded interview as
evidence-in-chief and cross-examination via live link unless this will not
improve the quality of their evidence. But, subject to the agreement of the
court, children may opt out of giving their evidence by either a video-
recorded interview as evidence-in-chief or by means of live link or both.
2.32 In coming to a view about video-recorded evidence-in-chief children
and/or the carers who have parental responsibility for them should
be given enough information for them to come to an informed
decision. Interviewers should, therefore, take steps to explain the
purpose of any proposed video-recorded interview to the child
and/or their carers, at a level appropriate to their age and
understanding. Such an explanation should include the following:
•The benefits/disadvantages of having or not having the
interview video-recorded;
•Who may see the video-recorded interview (including the
alleged offender both before the trial and at court);
•The different purposes to which a video-recorded interview
may be put (e.g. if it appears the video may be useful in
disciplinary proceedings against a member of staff who is
suspected of abusing or neglecting a child in their care); and
•That the child may opt out of video-recorded evidence-in-chief
if they wish to do so.
2.33 The child should be advised that, should the case proceed, whether a
video-recording is made or not, they may be required to attend court
to answer further questions directly (e.g. cross-examination). A live
link facility will normally be available to enable the witness to give
best evidence at court. There is a presumption that this aid will
normally be required by the child. The existence of a video-recorded
interview does not by itself guarantee that it will be used.
2.34 If a child wishes to opt out of video-recorded evidence-in-chief, they may
give all their evidence by live link from outside the courtroom, if the court
agrees. The child may also opt out of live link evidence, if the court agrees
but the law presumes that they will give evidence in the court room behind
a screen. Should they not wish to use a screen, they may also be allowed
to opt out of using it. Ultimately this is a matter for the court
to decide but the court must take the witness’ views into account
when making its decision on whether to approve an opt out request.
2.35 It is important that the Special Measures proposed are tailored to
meet the individual needs of the witness rather than being based
on the nature of the offence. In no circumstances should it be
assumed that all child witnesses are the same and they will want
to give evidence by video-recorded statement and live link.
2.36 It is not uncommon for a child witness to change their views about
giving evidence using particular Special Measures. Therefore,
Special Measures discussions should be ongoing and discussed at
the police interview stage, before submission of a Special Measures
application and reviewed again after a pre-court familiarisation visit.
2.37 Written consent to be video-recorded is not necessary from the child, but
it is unlikely to be practicable or desirable to video-record an interview
with a reluctant or hostile child. The interviewers are responsible for
ensuring that, as far as possible, the child is freely participating in the
interview, and not merely complying with a request from adult authority
figures. In cases where an adult with parental responsibility refuses to
allow a child to be interviewed, whether that interview was to have been
video recorded or not, and the child is not competent to consent of their
own accord the interview cannot take place. A strategy discussion
between the police and the social services should consider whether it is
appropriate to make an application for an Emergency Protection Order
under section 44 Children Act 1989 and to seek a direction form the
court under section 44(6)(b) for an interview to be carried out as part of
an assessment of the child.’
2.38 If, after having considered the circumstances of the child, an
interviewer comes to the conclusion that a video-recorded interview
is not the best way of presenting the child’s evidence to a court they
should explain this to the child and/or their carer. It is important that
the explanation is based on a consideration of the circumstances. A
full written record should be made of any such explanation.
2.39 If a child and/or their carer disagrees with an interviewer’s explanation for
concluding that a video-recorded interview is not the best way of presenting
the child’s evidence an Early Special Measures Discussion between the
police and the CPS should take place, ideally before the interview (see
Early Special Measures Discussions between the Police and the Crown
Prosecution Service, CJS 2009). If the prosecutor agrees with the
interviewer’s view it should be explained to the child and/or their carer and
no video-recorded interview should take place. If it is not practical to hold an
Early Special Measures Discussion before the interview it should be video-
recorded and the child and/or their carer informed that advice will be sought
from the CPS at the earliest opportunity.
Informing the Child’s Carers
2.40 It is generally presumed that the parents or carers of a child witness will be
informed of any interview before it takes place; this presumption is
independent of consent. In exceptional circumstances, however, it may be
necessary to interview a suspected child victim without the knowledge of
the parent or carer. Such circumstances include the possibility that
a child would be threatened or otherwise coerced into silence; a strong
likelihood that important evidence would be destroyed; or that the child in
question did not wish the parent to be involved at that stage, and is
competent to take that decision ((see Working Together to Safeguard
Children (Department for Children, Schools and Families, March 2010)
and Safeguarding Children: Working Together Under the Children Act
2004 (Welsh Assembly Government 2006)). Proceeding with the
interview in the absence of parental knowledge needs to be
carefully managed in interventions with the family by the local
children’s services authority, but may be necessary for example
where children are at risk of honour-based violence or forced
marriage.
Medical Examinations
2.41 Consideration should be given to the timing, purpose and content of any
medical examination or paediatric evaluation in relation to the interview.
Sometimes the medical examination will have preceded the interview,
for example after ‘acute’ abuse or if the examination needs to take place
before a laboratory closes (e.g. for identification of sexually transmitted
diseases). The doctor may be aware of problems that might be making
the child uncomfortable, such as soreness or vaginal discharge, and/or
may suggest the significance of any symptoms reported by the child at
the time of the abuse or later. When examining children, doctors should
take care to avoid asking leading questions or anticipating the
investigative interview. They should, however, make contemporaneous
notes of any spontaneous comments by the child concerning the origins
or circumstances giving rise to the evaluation or examination. On other
occasions, the medical examination will be after the interview; in such
cases where a medical examination is a possibility, a discussion should
take place with the paediatrician or police surgeon who will undertake
this to ensure that expectations of possible outcomes of the examination
are realistic and appropriate. It is essential that all notes and records
concerning medical examinations and decisions made in the course of
investigations are preserved, as they may be required for disclosure as
part of any subsequent criminal or civil court proceedings.
2.42 Consideration should also be given to the identity of the examiner. The
evaluation should only be carried out by suitably qualified and experienced
clinicians, and should not be confined solely to examination of the child’s
genital and/or anal areas. Guidance is available from the British Paediatric
Association Child Interest Group about the training and experience of such
a clinician and the content of the paediatric evaluation. A child who is
concerned that abuse may have damaged them in some way can be
reassured by a sensitive examination. Conversely, children who do not
allege penetration should not receive unnecessary medical examinations.
