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CODE OF PRACTICE TO FACILITATE THE PROVISION OF THERAPEUTIC SUPPORT TO CHILD WITNESSES IN COURT PROCEEDINGS

INTRODUCTION

1 This code of practice aims:

• To provide guidance on how therapeutic support can be provided to child witnesses in ways that avoid the risk of contaminating the evidence.
• To establish best practice guidelines which can be implemented consistently throughout Scotland.

2 The principles of the code of practice are:

• The child and/or those responsible for the welfare of the child are responsible for making the decision about the need for therapeutic support.
• There should be an assumption by all those involved with child witnesses in legal proceedings that therapeutic support will not inevitably contaminate a child's evidence. However, at the same time there should be awareness that there can be risks of contamination related to certain types of therapeutic support or questioning.
• It is acknowledged and accepted that the provision of therapeutic support can be beneficial to a child witness or victim, and it is not expected that this provision is withheld or advised against.

3 This guidance is aimed at all professionals involved with child witnesses in legal proceedings. It is especially relevant to those providing therapeutic support, Crown Office and Procurator Fiscal Service, Scottish Children's Reporter Administration, defence agents, the judiciary and the police. It is also relevant to other professionals coming into contact with children in legal proceedings including social workers, general practitioners, health visitors, paediatricians, teachers, educational psychologists and any voluntary agencies in contact with child witnesses and/or their carers.

4 The code of practice has been developed by a multi-agency steering group comprising representatives of ACPOS (Association of Chief Police Officers
in Scotland), ADSW (Association of Directors of Social Work), Barnardo's, Children 1st, COPFS (Crown Office and Procurator Fiscal Service), Faculty
of Advocates, Law Society of Scotland, NHS Fife (Centre for the Vulnerable Child, Fife Primary Care Division), NHS Lothian (Primary and Community Division), SCRA (Scottish Children's Reporter Administration) and the Scottish Executive. This group was set up as a subgroup of the Scottish Executive's Child Witness Support Implementation Group. The guidance was commissioned from Professor Amina Memon and Carole Hill at Aberdeen University. The development of the document has been based on extensive broad based consultation and, latterly, with a reference group representing networks of key practitioners. Appendix 1 contains further details of the members of the steering group and reference group.

Definition of a Child Witness

5 In the context of this document, a child witness is defined as a child under the age of 16 who is giving evidence in court proceedings. ¹ However, it is acknowledged that children up to the age of 18, who are under supervision orders, are protected by the children's hearing system and can also be very vulnerable. Child witnesses may or may not be victims of crime and they may be called to give evidence in criminal, civil or children's hearing court proceedings. Children can give evidence for the prosecution or defence in criminal trials and for any party in civil trials or children's hearing court proceedings. It should be noted that children who are victims of, or witnesses to, crime might not become child witnesses in court proceedings.

Background

6 The following code of practice seeks to implement recommendation 10 of the Report of the Lord Advocate's Working Group on Child Witness Support (1999). Recommendation 10 addresses the need to clarify the roles of those making decisions relating to therapy before court proceedings and recommended that:

• The Crown Office and Procurator Fiscal Service, Scottish Children's Reporter Administration, social work departments, health boards and child welfare organisations should, in consultation with the Law Society of Scotland and Faculty of Advocates, produce a code of practice addressing the provision of therapy before children give evidence.
• The code should emphasise that decisions about the timing and need for therapy can only be taken by those responsible for the welfare of the child and that the interests of children in need of treatment are paramount.
• The code should contain advice for therapists about how to avoid undermining children's credibility and reliability or influencing their memory of events or the account they give.

7 Before the conclusion of criminal, civil or children's hearing court proceedings, ² therapeutic support for child witnesses has sometimes been discouraged, even where it is considered necessary for the child's welfare. The fear that the child's evidence could be contaminated by such therapeutic support, and the proceedings prejudiced as a result, conflicts with the need to ensure that child witnesses are able to receive, as soon as possible, effective treatment to assist their recovery.

8 It is in the public interest, and in accordance with positive obligations under Articles 3 and 8 of the European Convention on Human Rights, that alleged crimes against children are properly investigated and, where appropriate, prosecuted in the criminal courts. In such actions, the interests of the child must be a primary consideration. In addition, all accused persons have the right to a fair trial. It is also crucial that child witnesses in children's hearing court proceedings are afforded the same consideration and that proceedings in this forum are fair and seen to be fair to all those with an interest.

Children's Rights

9 The UN Convention on the Rights of the Child states:

• Article 3. "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".
• Article 12. "States 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".

10 The Children (Scotland) Act 1995 states that:

• Section 16(1). "Where under or by virtue of this Part of this Act, a children's hearing decide, or a court determines, any matter with respect to a child the welfare of that child throughout his childhood shall be their or its paramount consideration".

Context

11 This code has been developed within the context of many interlocking initiatives to improve support for child witnesses and victims. The Scottish Executive has been co-ordinating the implementation of all the recommendations of the Lord Advocate's Working Group on Child Witness Support which has resulted in other best practice guidance on joint investigative interviewing, court familiarisation visits and questioning children in court. In addition, the Vulnerable Witnesses (Scotland) Act 2004 will provide for greater support for child witnesses and victims including:

• Early identification of child witnesses to ensure that appropriate special measures, which they will be automatically entitled to, are used. These include the following:
• Greater use of prior recorded statements
• Use of a supporter
• Taking evidence by a commissioner
• Use of live television links
• Use of a screen

12 Other provisions of the Act offering support are:

• A presumption that children under 12 in certain cases will not be required to attend court and will give evidence either through CCTV from another location or by evidence on commission
• Banning the accused from conducting his own precognition and/or defence in any case involving sexual or violent crimes involving a child under 12
• Abolishing dock identification of the accused where there has been a previous identification by the child
• Allowing special measures to be used in civil cases and children's hearings court proceedings

13 As part of the Child Protection Reform Programme, the Scottish Executive launched a Charter for Protecting Children and Young People in 2004, ³ which was developed in consultation with children, young people, parents, carers and practitioners. The children and young people involved spoke in detail about how they feel when they are unsafe or have been harmed and
in need of help and protection. It is relevant to how all children should be responded to when they are in difficulties at various times in their lives. There are 13 statements and a set of 11 pledges. The Scottish Executive has also developed a multi agency Framework for Standards for child protection which builds on these Charter statements and the pledges made to deliver better, more joined up child focused services for vulnerable children and young people. The Framework is applicable to all agencies, staff and volunteers working with children and along with the Charter provides the overarching context for the reform programme and what is expected from services and the basis for reflecting on performance.

Document Outline

14 This code will:

• Clarify who is responsible for decision making on the provision of therapeutic support
• Define types of therapeutic support and interventions
• Explain the evidential issues
• Outline best practice guidelines on:
• • How to provide therapeutic support without potentially contaminating evidence
  • Information sharing
  • Record keeping
  • Confidentiality.

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