Protecting the child witness in the courtroom

The 1988 and 1991 Criminal Justice Acts have transformed the law and procedure governing the appearance of children as witnesses in criminal trials. Traditional legal constraints such as the competency test, the requirement of corroboration, the special warning to the jury and the hearsay rule have all been abolished or extensively qualified. In addition, the 1988 Act introduced a major procedural change in the form of the video-link which was designed to make it easier for children to give their evidence. A survey of existing research confirms that children do find the giving of evidence in open court stressful and that the experience may have long-term adverse consequences. A study for the Home Office indicated widespread acceptance of the use of the video-link among courtroom personnel and observational data confirm its effectiveness in empowering children's testimony. The 1991 Act allows pre-recorded video-taped interviews to be admitted as evidence in criminal cases but retains live cross-examination via the link. The legal requirements of such interviews will place heavy demands on interdisciplinary cooperation in training and the establishment of good practice. The impact of this novel scheme on child witnesses and the court deserves rigorous evaluation.     

The interface between the child welfare and criminal justice systems in England

The development of government guidance can seem a mysterious process to those outside government. This paper, which draws on the author's experience, is intended to give some insight into how guidance in two areas—child witnesses and children involved in prostitution—was developed within the existing legal framework. Since that time, the Sexual Offences Act 2003 has come into force in England and Wales and the Children Bill is currently before Parliament. The paper begins by setting out the key legislation, regulations and guidance that underpinned the child welfare and criminal justice systems as they related to child protection at the time the guidance was being developed. It then describes how the different guidance documents relate to each other and the implications for practice. The development of speci?c guidance is drawn upon to illustrate some of the tensions that had to be resolved during the drafting and the processes by which they were ?nalized for approval by the Government. A key area requiring careful consideration was the differences between the family and criminal justice systems. In the former, the welfare of the child is paramount when making decisions and in the latter, the court has a duty to ensure the defendant has a fair trial. Copyright © 2004 John Wiley & Sons, Ltd.     

Cross‐examination,sexual abuse and child witness identity

This paper presents extracts from cross‐examinations with child witnesses who are alleged victims of child sexual abuse. The manner in which cross‐examination may present a challenge to the child's identity as child, victim and witness is discussed. Specifically, the child may be portrayed as ‘unchildlike’, for example in their experience of sexual relationships or in their sexual knowledge. They may be portrayed as less than innocent, through references to previous contacts with social services or to other behaviours such as delinquency. Child witnesses may be depicted as instigators rather than victims, seducing the adult or seeking revenge through sexual allegations. Finally, children are easily accused of being poor witnesses, as being confused, untruthful and having fallible memories. The paper considers the dynamics and potential impact of such cross‐examination practice within Finkelhor's framework of four traumagenics of sexual abuse: traumatic sexualization, betrayal, powerlessness and stigmatization. The potential for poorly conducted cross‐examinations to create further problems for child witnesses, particularly in the area of identity, is highlighted, and it is suggested traumagenic factors in such cross‐examinations may resemble those of abuse. The paper discusses practice implications for cross‐examination, judicial intervention and witness support following implementation of the Youth Justice and Criminal Evidence Act 1999 in England and Wales. Copyright © 2002 John Wiley & Sons, Ltd.     

Lexical struggle in court: Aboriginal Australians versus the state1

This paper presents a critical sociolinguistic exploration of the cross‐examination of three young teenage Australian Aboriginal boys in a Queensland court. The boys alleged that they had been abducted by six police officers, so they were prosecution witnesses in the case against the police officers. The paper examines the lexical strategies used by defence counsel to construct these victim‐witnesses as criminals with ‘no regard for the community’, and to reinterpret the alleged abduction as a consensual car ride. Of greatest concern is the strategy which I term ‘lexical perversion’– the rejection of a witness's labelling of their own experience, through overt correction with, or covert substitution of, another lexical item. These lexical strategies are central to the judicial legitimation of neocolonial control by the police over the movements of Aboriginal young people.     

Facilitating interviews with children who may have been sexually abused

The introduction of the Memorandum of Good Practice on interviewing children who have been sexually abused has had an important unifying effect on professional practice. However, because of the traumatic nature of sexual abuse there will be a group of children about whom there are high levels of suspicion and where arrangements need to be made for their future care, protection and treatment. These include children who have learning disabilities or communication problems, have psychiatric disorders associated with abuse, or where there have been considerable delays since allegations were first made. Such children require a second-stage facilitative assessment interview. These include different forms of questioning, and the use of a wide range of prompting materials including art work, free and structured play context and the use of anatomically correct dolls. These approaches are reviewed and illustrated through case studies.     

Pathways to Mental Health Services for Children and Youth in the Child Welfare System: A Focus on Social Workers’ Referral

Case abstraction was used to collect data from court reports to examine characteristics that predict referral to mental health services by court and child welfare social workers and whether referral to mental health services was a significant determinant of service utilization. Home placement and multiple types of abuse were significant predictors of a referral to mental health services by the court social worker and age and reported sexual abuse were significant in the utilization of services. Practice and policy implications are discussed.     

Lay people in court: the experience of defendants,eyewitnesses and victims

The article considers the effect of criminal trial procedures on the experience at court of victims, witnesses and defendants. Trials for offences involving physical violence were observed, and interviews conducted with those involved. The article highlights communication problems lay people encountered relating to courtroom conventions, discusses alternative procedures granting more room for narrative testimony, and draws parallels between such an approach and principles of research methods directed to securing valid, reliable data.     

A Case Study Perspective: The Experiences of Young Persons Testifying to Child Sexual Exploitation in British Criminal Court

Three young persons who gave evidence about child sexual exploitation in criminal court using various testimonial supports were interviewed about their testimony experiences. The witnesses reported that they felt extreme pressure to remember events accurately and cared greatly about being believed. None reported their own coping strategies to alleviate stress and took comfort breaks only after they cried on the stand. Defense attorney questions were reportedly repetitive, rapid, confusing, and focused on secondary content rather than the central criminal acts. The witnesses mentioned dissatisfaction in having supportive social workers whom they trusted leave the case and be replaced.     

Judgments regarding parental alienation when parental hostility or child sexual abuse is alleged

Abstract

Allegations of Parental Alienation (PA), the systematic disparaging of one parent by the other parent aimed at alienating their child’s affections, as a basis for child custody decisions are highly controversial. Claims of parental hostility or allegations of child sexual abuse in custody cases may trigger concerns about PA. Family court professionals (N?=?280) rated young children’s accuracy of report (e.g., suggestibility, honesty) in general and also read three custody scenarios varying as to whether or not they included allegations of parental hostility or child sexual abuse, or no such allegations. For each scenario, the alleged alienating parent’s gender was experimentally varied between subjects. Participants rated the likelihood that each case involved PA. For the scenario that included allegations of child sexual abuse, professionals who viewed young children as more inaccurate reporters or who read about the mother (rather than a father) as the alleged alienator were more likely to rate the scenario as involving PA. For the scenario that described parental hostility but no child sexual abuse allegations, professionals who were older or female were more likely to judge the scenario as involving parental alienation when a mother (rather than a father) was the alleged alienator, whereas there were no significant predictors of responses to the no-allegation scenarios. Findings are discussed in relation to the difficult task of evaluating custody cases for PA when parental hostility or child sexual abuse is alleged.     

The Role of the Academic Nurse and Physician in the Criminal Prosecution of Nursing Home Mistreatment

Academic health care professionals have worked with the Commonwealth of Pennsylvania Attorney General's office in a number of capacities to examine the quality of care in several Philadelphia area nursing homes. These tasks include: evaluating the quality of care; helping the prosecution understand the complexities of the cases; and testifying in court, in particular, educating the court about aging, disease, nursing homes, and the appropriate care of infirm elderly. This paper discusses the responsibilities of physician and nurse expert witnesses, using the cases of Ms. E and Ms. W as examples. It also describes some of the tensions that arise when educators work with prosecutors.     

Children as Witnesses: Understanding Their Capacities,Needs, and Experiences

Historically the law regarded children as inherently unreliable and made it difficult for them to testify. Since 1975 awareness of child abuse has increased and research has established that children can be reliable witnesses. Governments began to recognize the needs and capacities of children and enacted legal reforms to facilitate prosecutions for child abuse. This paper reports on a survey of victim witness workers and other justice system professionals which reveals some of the continuedfailings of that system in dealing with children. Althoughrelatively rare, there are cases of false allegations of abuse, usually a result of investigations by poorly trained professionals. Further legal reforms and better human supports are required to ensure that the needs of children are met and their capacities as witnesses are fully appreciated.     

Children as Witnesses: Understanding Their Capacities, Needs, and Experiences

Historically the law regarded children as inherently unreliable and made it difficult for them to testify. Since 1975 awareness of child abuse has increased and research has established that children can be reliable witnesses. Governments began to recognize the needs and capacities of children and enacted legal reforms to facilitate prosecutions for child abuse. This paper reports on a survey of victim witness workers and other justice system professionals which reveals some of the continued failings of that system in dealing with children. Although relatively rare, there are cases of false allegations of abuse, usually a result of investigations by poorly trained professionals. Further legal reforms and better human supports are required to ensure that the needs of children are met and their capacities as witnesses are fully appreciated.     

Abusers gaining custody in family courts: A case series of over turned decisions

Abstract

This article presents findings and recommendations based on an in-depth examination of records from 27 custody cases from across the United States. The goal of this case series was to determine why family courts may place children with a parent that the child alleges abused them rather than with the nonoffending parent. We focused on “turned around cases” involving allegations of child abuse that were at first viewed as false and later judged to be valid. The average time a child spent in the court ordered custody of an abusive parent was 3.2?years. In all cases we uncovered the father was the abusive parent and the mother sought to protect their child. Results revealed that initially courts were highly suspicious of mothers' motives for being concerned with abuse. These mothers were often treated poorly and two-thirds of the mothers were pathologized by the court for advocating for the safety of their children. Judges who initially ordered children into custody or visitation with abusive parents relied mainly on reports by custody evaluators and guardians ad litem who mistakenly accused mothers of attempting to alienate their children from the father or having coached the child to falsely report abuse. As a result, 59% of perpetrators were given sole custody and the rest were given joint custody or unsupervised visitation. After failing to be protected in the first custody determination, 88% of children reported new incidents of abuse. The abuse often became increasingly severe and the children's mental and physical health frequently deteriorated. The main reason that cases turned around was because protective parents were able to present compelling evidence of the abuse and back the evidence up with reports by mental health professionals who had specific expertise in child abuse rather than merely custody assessment.     

Decision-Making Criteria in Child Custody Disputes That Involve Requests for Overnight Visits with Infants and Toddlers: Derived from a Review of the Literature

ABSTRACT

The court, child custody evaluators, and mediators are often faced with difficult decisions regarding how to best meet the needs of children from families who are involved in child custody disputes. In some cases, the court, child custody evaluators and mediators are asked to make decisions about parenting plans for infants and toddlers. When decision makers are faced with actual cases, they are likely to be assisted by lines of inquiry that help them gather the most relevant data to answer the question at hand. A review of the literature has led to the development of 13 criteria that decision makers can use to reach conclusions about whether overnight visits would be advisable with a given infant or toddler. The criteria are considered neutral and are not based on any bias or preconceived opinion about whether overnights with infants and toddlers are or are not advisable. Instead, the criteria proposed provide the decision-maker with an objective way of structuring their thinking about a particular case to insure that all pertinent information has been considered before reaching a conclusion about whether overnight visitation is in the best interest of a given child.     

Pulling Strings Doesn’t Work in Court: Moving Beyond Puppetry in the Relationship Between Prosecutors and Rape Survivors

Rape survivors, as witnesses, are partners in the criminal justice process, whether prosecutors acknowledge this or not. Minimizing rape survivors’ experiences of a second assault requires that prosecutors become responsive to their key witnesses’ realities and motivations and provide greater information and support before and during court events. When prosecutors approach witness preparation from the standpoint of their own needs they provide information and instruction that is too little and too late. When prosecutors approach survivors’ emotions as resources they may undermine their case by adding to the negative emotional impact of the court event on their witness.     

Seen and heard but how well informed? Children's perceptions of the guardian ad litem service

This paper is an account of a study which explored children's perceptions of the guardian and litem service and their experiences of public law proceedings. Whilst generally children felt positive about the service they received, in areas such as their attendance at court, who had access to the information they gave to their guardians, the arrangements made in regard to expert witnesses and the ability of guardians and the courts to influence care plans, a number of strong themes emerged. These are described and the implications of these findings for guardians and other professionals who practice in the field of family law are considered. Copyright © 2001 John Wiley & Sons, Ltd.     

Child sex abuse and the Irish criminal justice system

The aims of this study were to develop scales to assess experiences of sexually abused children in the Irish criminal justice system (CJS); identify aspects of the CJS which children experience as negative; compare the perceptions of children, parents and professionals of sexually abused children's experiences of the CJS; and determine correlations between perceptions of children's CJS experiences and current psychological adjustment. Forty‐three children, 101 parents, 32 mental health professionals, 27 police officers and 21 lawyers completed parallel versions of the Criminal Justice System Questionnaire (CJSQ) which assessed satisfaction with aspects of the CJS relevant to sexually abused children, specifically: Gardaí (police), medical examination, Director of Public Prosecutions, waiting for court, court professionals, court context and the CJS. Fifteen scales were developed by conducting principal component analyses. Children gave negative ratings on nine of these, and on seven children, parents and professionals differed in their perceptions of how children experienced the CJS with mental health professionals viewing the impact of the CJS as more problematic than parents and children. Scores of children and parents on CJSQ scales correlated with indices of current psychological adjustment. These results point to the importance of making the Irish CJS more child‐friendly and for evaluating these reforms with the CJSQ. Copyright © 2011 John Wiley & Sons, Ltd.     

Adults' perceptions of children's videotaped truthful and deceptive statements

SUMMARY. This article uses a research study on decisions about children's truth telling to discuss the difficult issues involved in using video-taped evidence in child abuse cases. The adult raters had to decide whether each child recounting a school trip was telling the truth or had only seen a video recording of the day's events. Raters were just above chance in detecting truth and deception, were better able to detect truth tellers than deceivers, and were more successful in decoding deceptive behaviour presented by boys and younger children. Most accuracy-confidence relationships were not significant.     

Post-modernism,truth and social work

Abstract

In this article, I suggest that social workers should be servants and seekers of truth and that they should do their utmost to re-legitimise the quest for truth in social life and professional practice. I hold that while post-modernism must be applauded for its incisive critique of the totalising tendency' of the quest for truth, especially when fuelled by passionate ideological conviction, yet its forthright rejection of truth itself has had disastrous social consequences and serious deleterious effects on professional practice in social work. Over the last two decades or so, the baby (truth] has been recklessly thrown out with the bath water (totalistic Ideologies) and the consequences have been sorely felt in society, in the personal lives of individuals, in the human service professions as a whole and in social work, especially of course in the writings and professional practice of those who have enthusiastically embraced post-modernism. I also suggest, however, that social work needs to take full advantage of the insights of post-modernism (and especially of Foucault) in order to avoid falling into a totalistic chasm' as the profession pursues its own quest for truth.