Children in court - Part 1
Child witness support - The wider context
This chapter considers what lessons can be drawn from the study and identifies the broader issues to be addressed by Victim Support National Office and the Witness Service in improving the support and preparation of child witnesses.
The confidence of the court
Dr Karen Saywitz,59 a leading authority on the preparation of child witnesses to give evidence, has emphasised that support programmes are most likely to be effective where there is a sense of ownership on the part of the court.60
The pilot scheme at Court A has been well received by children, families and the police in particular. However, it experienced a rather shaky start as far as the court itself was concerned. Only one judge and no member of the court staff provided comments on the scheme at the evaluation stage. Although initial terms of reference for the pilot project were proposed by Victim Support and the Witness Service and agreed following a project meeting attended by court staff, substantive aspects were altered later at the request of the judges. These changes were documented in correspondence. Although it is usual in a pilot project for roles to be re-defined, a package of documentation formally agreed by both the Court Service and the Witness Service was not exchanged until late in the project.
Implementation would have been facilitated by the development at an early stage of a draft protocol on child witness preparation agreed by the judiciary, court staff, CPS, police, social services and Witness Service. Such a service level agreement could be amended as necessary and would provide a ready reference for all those involved. It would also assist new personnel unfamiliar with the scheme (Court A experienced significant changes of key personnel during the study). Information about the child witness preparation scheme and the safeguards it contains should be made known to the Bar, for example, by posting a notice in the barristers' robing room.
After the pilot project ended, the Trials Issues Group61 produced a statement entitled 'Witness care in the criminal justice system - taking forward standards of witness care through local service level agreements' (1996). This statement sets national parameters for new standards of service for witnesses in criminal cases and provides a specimen local service level agreement on shared responsibility for witness care. The specimen emphasises the importance of identifying individuals, not simply organisations, responsible for implementation, interpretation and amendment of the agreement.
In the past, there has been some debate about the suitability of a voluntary service to undertake the skilled and sensitive role of child witness preparation. Police contributing to an earlier study commented that, at that time, Victim Support did not have the necessary knowledge to undertake such a complex role. One senior officer feared that volunteers, although willing, would never be sufficiently skilled.62 Nonetheless, the four Witness Service schemes in the present study have demonstrated a significant commitment to the support of children. In taking up the challenge of supporting greater numbers of child witnesses in the future63, the Witness Service should be alert to residual concerns in the wider criminal justice community about volunteers working with child witnesses. The 'ideal' skills for child witness support and preparation were listed in the joint letter issued by government departments to accompany the Child Witness Pack, but further work is necessary to identify the level of competencies required. Concern about coaching or contamination is not unjustified and underlines the need for a proper understanding of evidentiary requirements.64
Proposal: A model protocol covering child witness preparation and procedures at court should be developed. The protocol should draw on existing local child witness agreements involving the Witness Service65 and the 'Witness care' statement produced by the Trials Issues Group.
In order to improve the confidence of courts and others in the criminal justice system in child witness preparation schemes, Victim Support National Office should work with those concerned with child witness preparation to clarify the level of skills required.
The scope of preparation
There is no national policy stating where responsibility lies for child witness preparation and the level of service offered varies widely according to area. Until recently, there was no national undertaking concerning provision of the Child Witness Pack. The revised Victim's Charter published by the Home Office in June 1996 states that the police will provide copies of the Pack to child witnesses 'in cases involving sex, violence or cruelty'. However, apparently no additional resources have been provided to the police for the purchase of Packs so there is concern about how effective this commitment will be in practice.
There is no consensus in this country about what constitutes appropriate preparation. The Pack was issued without instructions about how it should be used. Research indicates that simply providing the child with some legal knowledge and giving a tour of the courtroom - typically, what schemes provide here - may not be enough to reduce stress and improve testimony.66 It has been suggested that proper preparation also involves providing children with appropriate communication skills for the formal examination procedure and anxiety management techniques to enable them to cope with stress.67
The Pack contains approved messages to children about how to respond to cross-examination, for example, 'tell the truth, it's okay to say if you don't understand the question or can't remember'. There is a fundamental difference between preparing the child for the experience of giving evidence and dealing with techniques of cross-examination, which is acceptable, and coaching on the evidence in the case, which is not. There remains confusion about how the messages in the Pack can best be conveyed because of fears about accusations of 'coaching' or 'rehearsing' the child's evidence.
Clear definitions and boundaries are important for everyone engaged in child witness preparation, including volunteers. Only 22 per cent of volunteers reported playing question and answer games with children to help with cross-examination. However, children who are given the opportunity to practise question and answer techniques are reported to be better able to respond appropriately and identify questions they do not understand than those who are simply given advice about responses.68
Proposals: In order to improve the quality of preparation of child witnesses to give evidence, Victim Support National Office should work with other organisations concerned with child witness support to establish agreed guidance on what constitutes appropriate preparation.
A comprehensive training programme for volunteers should be developed to address the competencies required in child witness support. The scope of this training needs to be broader than that of the pilot two day programme which was insufficient to cover all aspects of the task.
The timing of preparation
An expanded definition of child witness preparation has significant implications for the time required from volunteers and the scheduling of appropriate involvement. Thirty per cent of volunteers reported that they saw the child for the first time on the day of trial69; 26 per cent saw the child less than two weeks before although the remainder met the child some time in advance (for 17 per cent of volunteers this was more than three months ahead).70
It was not possible to identify the proportion of time spent on preparing child witnesses by all volunteers but those at Court A spent up to an hour at the pre-trial visit going through the child witness booklets. This compares with between eight to ten hours in Dr Karen Saywitz's court preparation programme pioneered in California and a similar commitment of time in the NSPCC Surrey scheme. Sometimes the pre-trial visit at Court A was conducted under time constraints imposed by the person transporting the child to court or by the court itself. Although these volunteers felt that they had enough time with the child, some volunteers at other courts commented that children may feel 'overloaded' if everything has to be covered on a single pre-trial court visit.71 Using the Pack is not only an information-giving exercise. Time is needed to find out about how the child feels, to reveal fears and misapprehensions and to allow reassurance to be given. Those carrying out home visits found early involvement to be helpful in reducing the child's anxiety even about the pre-trial court visit. It also meant that children could be seen after school in a setting that was usually more relaxed than the court building.
Some volunteers felt that ground lost on preparation in advance of trial was made up during the time that the child was waiting at court to give evidence. However, this is taking advantage of bad practice as continuing efforts need to be made to minimise waiting times for children on the day of trial.
For those Witness Service schemes providing 'Your child is a witness' to parents, supplying it a week or two before the trial came too late in the process. In addition to explanations about court procedure, the booklet contains advice relevant to an earlier stage about supporting the child and dealing with the parent's own feelings.
Proposals: Volunteers should be allowed enough time to work effectively with child witnesses and their parent/ carers before the day of trial. Due weight should be given to the wishes of parents and carers to play a part in the preparation process.
Copies of the Child Witness Pack should be made available to children and carers at a sufficiently early stage in court proceedings. Victim Support should continue to press for systematic provision of the Pack on a national basis.
Improved methods are needed to give the criminal justice process, including the Witness Service, advance notice of child witness cases.
Working with other organisations
The proposal for the pilot project at Court A acknowledged that the involvement of a Witness Service volunteer in direct contact with the child would not be appropriate in every case.72 Its aim was not to replace support work where it was already undertaken by others but to increase the number of options available for the support of children. Victim Support National Office recognises the importance of the Witness Service extending its support, wherever possible, to those already supporting the child in the community. However in a small number of study cases, volunteers adopted a somewhat 'territorial' tone in respect of the 'over-involvement' of social workers, the NSPCC and Victim Support and, in a similar vein, where children and carers were accompanied to court by groups of friends and relatives. The parent of a child witness may prefer to be supported by as large a number of people as possible at court. However, volunteers are aware that the presence of a group of supporters can increase the possibility of confrontations in small court rooms and unsegregated public areas.
Difficulties may be avoided through better coordination in advance of trial with the police and the child's carer. The officer in charge of the case should take the lead in this. Discussions will be necessary with other support organisations about clear delineation of roles. Liaison between the police and Witness Service is particularly important where the case is handled by the CID rather than a specially trained officer from a child protection unit. Volunteers found CID officers were unfamiliar with child witness procedures.
Part of the child witness supporter's role is to convey information about the child's needs at court to the police, CPS and court staff.73 Thirty-nine per cent of volunteers reported passing on such information and three-quarters of those who did so thought that the communication had been helpful. Liaison within the court hierarchy can be difficult and the Witness Service coordinator can play a key role in this regard. There were instances in which very young children had waited at court for a long time before giving evidence and were extremely tired when called to testify. While the decision to proceed is the responsibility of the judge, those taking care of the child at court have a responsibility to ensure that the judge is fully informed of the child's psychological and physical state and how this changes as the day wears on.
Relevant information about the child may not be made known to the Witness Service in time to assist with planning. In cases in which there is a formal referral from the police or social services, the Witness Service may receive brief information about the child. This is not always adequate, for example where it fails to mention that the child has learning difficulties, as happened in one case in the study. A national standard checklist of information has been agreed for communication by the police to the CPS in child witness cases on the confidential form MG 6. Much of the information it contains - for example, child-related strengths, weaknesses and vulnerabilities including developmental age, linguistic and emotional development and attention span - is highly relevant to preparation work with the child.
The study identified continuing difficulties with delays on the day of trial causing child witnesses an unplanned and lengthy wait before giving evidence.74 Some courts have introduced a system whereby certain young witnesses wait away from the court building until telephoned to attend.75 Volunteers suggested that for the youngest witnesses in particular, evidence should be taken only in the morning. In one case observed by the researchers during the course of the study, all four young witnesses were brought to court on the first day. At the start of the trial, the prosecution barrister told the judge he had not yet decided on the 'running order' of witnesses. Only two of the children were able to give evidence that day. The others had to return the following day.
Proposal: Training should address the liaison and communication aspects of child witness support. Representatives of relevant organisations, including court staff, should be requested to take part in the training programme. Attention should be paid to the special liaison role of Witness Service coordinators and Crown Court child liaison officers (now entitled child witness officers).
Discussions should be undertaken locally to facilitate, where appropriate, the sharing of confidential information about the child to ensure that the preparation process is conducted as efficiently and effectively as possible.
The Witness Service should discuss with the court and the CPS:
- the scheduling of children's evidence and problems of delays on the day of trial
- ways to ensure that the judge and the prosecution have all relevant information about the child's welfare or ability to give evidence and to keep this updated when delays occur.
Accompanying children while they give evidence
Research suggests that child witnesses not only derive emotional support from the presence of a support person known to them but the consequent reduction in anxiety may improve the quality of their evidence.76 These benefits were acknowledged by the Scottish Law Commission:
'There seems to be little doubt that the presence, close at hand, of a parent or some other trusted adult can, in some cases, give a young child the reassurance that is required for evidence to be given clearly and confidently; and for that reason we consider this practice should be encouraged as much as possible'.77
Prior to the introduction of CCTV links, the Home Office left open the discussion 'whether it would be helpful to have a parent or other relative - or, where no-one from the family is available or appropriate, a social worker or other responsible adult - present in the same room as the child'.78 The Pigot Report endorsed the presence of 'a parent or supporter' during the cross-examination of the child.79 In 1989, the presence of a social worker sitting with the child in court was upheld by the Court of Appeal.80 Rule 23A of the Crown Court Rules provides for the name and relationship of the person to accompany the child to be entered on the CCTV link application form. The first restriction on the identity of the support person appeared in 1991 court guidelines.81 These state that only an usher 'selected and trained for the task' should be present when a child gives evidence through the CCTV link. 'In very exceptional cases' another person such as a social worker or police officer who did not conduct the investigative interview could also be present but only with the agreement of the defence unless such agreement is unreasonably withheld.
In response to these guidelines and the mention of 'ushers... trained for the task' the Lord Chancellor's Department issued guidance for ushers.82 The guidelines appear to have had the effect of discouraging applications naming others to accompany the child as provided for on the CCTV link form. The previous chapter described the anomalies revealed by a comparison of courts which allowed child witnesses to be accompanied by a volunteer and those which did not. In their 1991 Home Office study, Davies and Noon found that 88 per cent of children were accompanied only by the usher.83 In a review of 100 prosecution files conducted during 1994-95, 53 cases were the subject of CCTV link requests but only 10 of these (19 per cent) named a specific adult on the CCTV link application to accompany the child.84 In at least three of these cases the named individual was rejected. Twenty-four barristers responding to a survey (75 per cent) in that study did not consider it to be problematic if, in addition to the usher, a familiar but independent person accompanied the child in the CCTV link room. Seven felt that it raised some problems but only one saw it as very problematic.
There is a wide consensus among those working with child witnesses that the 1991 guidelines are overly restrictive and are causing unnecessary stress to children. National guidance on the role of the person accompanying the child in the CCTV link room is needed.85 This is even more important since the revised Victim's Charter (1996) makes the general commitment to all witnesses that 'if you have to give evidence you can ask to have a friend or supporter in the court. Someone from the Witness Service can accompany you if you wish'.
If the scope of the support role is clearly established, it may address the concerns of the judiciary about the presence of a support person. (As noted above, this does not appear to be a significant problem for the Bar). In particular, there is a need for guidance on the support person's ability to comfort a distressed child. Instructions to ushers advise them not to speak to the child about the case or the child's evidence. However, if there is an 'interruption due to the witness becoming distressed or [being] unable to continue giving evidence' and the child talks about the case, ushers are permitted to 'listen to the child and make comforting gestures to ease the child's distress'.86 Similar instructions are appropriate for others accompanying the child.
A 1995 Scottish Office report made a series of recommendations concerning support persons accompanying child witnesses in the CCTV link room.87 These seem equally applicable to England and Wales:
- their identity should be agreed by the parties and be known to the child before trial
- guidelines should be issued addressing their role, with particular reference to the extent of permitted communication with the child, whether or not any comfort can be provided and whether they should interrupt the questioning in the event of an error by counsel
- the person accompanying the child should have the facility to alert the judge in the event of any problem arising for the child while giving evidence, technical or otherwise.
Proposal: In conjunction with other organisations providing support to child witnesses, Victim Support should continue to press for a review of court guidance on who may accompany the child witness while giving evidence.
Feedback to the judiciary
Over 90 per cent of volunteers commenting on 34 children who gave evidence referred to symptoms of the child's stress. Most children also described feeling afraid or nervous. The Pigot report concluded that:
'We cannot emphasise strongly enough that those children who are clearly upset or who break down in the witness box simply manifest openly the effects of a much more generally harmful experience'.88
The Lord Chancellor's Department's strategic objectives include a commitment to:
'continue our work on improving the procedure for... the taking of children's evidence'.89
Those providing support to child witnesses, including the Witness Service, have a unique perspective on the experience of children and their carers at court. Many of the problems identified in this report originate in poor communication or a lack of appreciation of children's needs. These could be addressed more effectively if routinely brought to the attention of the judiciary, prosecution and others in the criminal justice system. Although Witness Service schemes take part in court meetings, due to the sensitivities involved it is difficult for coordinators to provide feedback on individual cases.
Proposal: In conjunction with other organisations providing support to child witnesses, the Witness Service should endeavour to establish a mechanism for regular feedback to the judiciary and others about the experience of child witnesses and their carers both in respect of what works well and what is perceived to be problematic.
59. UCLA School of Medecine. Co-author of A judicial Primer on Child Sexual Abuse (1994)
American Bar Association Center on Children and the Law
60. 'Helping children survive the legal process' National Conference, Leicester (21 March 2019)
61. Membership includes the Association of Chief Police Officers, Bar Council, Coordination of Computerisation in the Criminal Justice System, Court Service, Crown Prosecution Service, Home Office, Justices Clerks' Society, Law Society, Lord Chancellor's Department, Magistrates' Association, Prison Service, Probation Service and private sector. The Group's terms of reference are to consider specific criminal justice system matters involving relations between the police, prosecution and others.
62. Joyce Plotnikoff and Richard Woolfson (1995) Evaluation of the Child Witness Pack: the support and preparation of child witnesses to give evidence. Report to the Home Office
63. The revised Victim's Charter published by the Home Office in 1996 makes the general point
that the Crown Court Witness Service 'offers help to child witnesses'
64. Victim Support points out that similar concerns were raised before the establishment
of Witness Service work with adults in the Crown Court. Training emphasises that it is not a volunteer's role to discuss evidence, and there have been no cases of contamination.
65. Examples of such protocols involving the Witness Service include those agreed at Teeside, Gloucester and Northampton Crown Court centres.
66. See projects cited by John Spencer and Rhona Flin (1993) The Evidence of Children at p. 381
67. Karen Saywitz et al (1993) 'Improving children's testimony with preparation' in Child Victims, Child Witnesses. ed. G.Goodman and B. Bottoms. New York: Guildford
68. Research reported by Karen Saywitz at 1996 Leicester Conference, op. cit.
69. This may be due in part to late notice of child witness cases, including late transfers
of cases to the court in question.
70. It is possible that some of these 'long notice' cases are accounted for by re-trials.
71. Pre-trial home visits were offered at Courts C and D. However, although part of the initial scheme at Court A, such visits were withdrawn due to the concerns of judges.
72. Proposal to establish the Witness Service as an independent adult support for child witnesses (1994)
73. Joint letter issued by government departments to accompany the Child Witness Pack
74. The Victim's Charter (1996) states that 'in the Crown Court we aim to make sure witnesses do not have to wait for more than two hours before being called to give evidence'
75. After the study ended, Court A introduced the practice, already used by some other courts, of scheduling child witness trials to begin at 2 pm with the child's testimony due to begin the following morning.
76. For example, Stephen Moston 'Social support and the quality of children's eyewitness
testimony' in H. Dent and R.Flin (eds.) Children as Witnesses (1992)
77. Report on the Evidence of Children and Other Potentially Vulnearable Witnesses (1990)
78. The use of video technology at trials of alleged child abusers (8 May 2019) Home Office
79. Report of Advisory Group on Video Evidence (1989) Home Office
80. R v X, Y and Z (The Times, 3 November 2019)
81. Guidelines issued by Tasker Watkins, Deputy Chief Justice. Live TV link cases - person to accompany the child in the video room (October 1991)
82. TV Links - ushers accompanying child witnesses (December 1991) reproduced as Annex H.3 of TV links (a guide to live TV links in the Crown Court) Lord Chancellor's Department Criminal Business
Division (March 1994)
83. An evaluation of the live link for child witnesses
84. Joyce Plotnikoff and Richard Woolfson (1995) The pace of child abuse prosecutions - follow-up
study of the government's speedy progress policy. Department of Health.
85. Court A has developed such guidance locally and requires the person accompanying the child to take the oath that they have read it.
86. TV Links - ushers accompanying child witnesses, op.cit
87. Kathleen Murray (1995) Live Television Link
88. Report of the Advisory Group on video evidence (1989) Home Office
89. Strategic Plan (1996/97 - 1998/99) A programme for the future.