14.1 In Australia children appear as witnesses in courts most frequently in criminal proceedings.[1] In these cases children are often the victim of the alleged crime or are witnesses to events that have happened to others.[2] Children also appear as witnesses in a variety of other court and tribunal proceedings, such as in the Family Court and magistrates’ courts exercising federal family law jurisdiction,[3] State and Territory civil courts,[4] care and protection proceedings,[5] juvenile justice proceedings[6] and before both federal and State or Territory tribunals.[7]

14.2 Evidence to the Inquiry indicated that, whatever the jurisdiction, the structures, procedures and attitudes to child witnesses within all these legal processes frequently discount, inhibit and silence children as witnesses. In cases where the child is very young or has or had a close relationship with one of the parties or where the subject of the evidence is particularly sensitive, children often become so intimidated or distressed by the process that they are unable to give evidence satisfactorily or at all.[8]

14.3 The recommendations in this chapter focus on remedying this situation. We have attempted to develop processes that

    • ensure that child witnesses are able to give reliable evidence

    • enhance the status of children as witnesses so that their evidence is given appropriate weight

    • minimise the stresses placed on child witnesses.

14.4 This approach is consistent with the provisions in CROC which require that children are heard and protected in all legal processes.[9] Protection of child witnesses is also covered by the Commonwealth’s undertaking to

take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts. Such recovery and integration shall take place in an environment which fosters the health, self-respect and dignity of the child.[10]

In addition, States Parties to CROC are to

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child…Such protective measures should, as appropriate, include… investigation, treatment and follow-up of instances of child maltreatment and, as appropriate,…judicial involvement.[11]

Taken together, these articles require the evidence of child witnesses to be taken in a way that promotes the physical and psychological recovery, health, self-respect and dignity of the children involved. Despite attempts by government and non-government agencies to assist and protect child witnesses, legal processes often fail to meet these standards.

14.5 Many of the recommendations in this chapter are applicable to all child witnesses. Where possible we have generalised recommendations to apply to all children who may give evidence in federal, State or Territory proceedings. The greatest proportion of evidence to the Inquiry, however, concerned children who give evidence in criminal proceedings about being sexually or physically abused. We encountered a tremendous outpouring of concern about the treatment of these children by the legal process. As child abuse is an issue handled by numerous government agencies across jurisdictional divides, the Inquiry also makes part-icular recommendations relating to child witnesses in criminal abuse cases, even though these recommendations may relate predominantly to State and Territory legal processes.

[1] NSW Child Protection Council Position Paper on the Use of Closed Circuit Television for Child Witnesses NSW Child Protection Council Sydney 1994, 1. See also para 4.10.

[2] See para 14.6.

[3] See para 14.10.

[4] See para 14.13.

[5] See para 14.12.

[6] Children may also give evidence in criminal proceedings on their own behalf when they are the accused.

[7] See paras 4.6, 4.13. See also paras 9.91-92 for a discussion of the proposed Administrative Review Tribunal which is to replace the various tribunals mentioned.

[8] J Turner, President Oz Child Public Hearing Submission Melbourne 29 May 1996; Tranby College Focus Group 10 June 1997; L Gunawan IP Submission 135; Anonymous IP Submission 180.

[9] arts 3, 12.

[10] art 39. The term ‘all appropriate measures’ should include all legal measures necessary to promote physical and psychological recovery of child victims while the child is giving evidence. This view is supported by the considerations of the 1988 Working Group that the original wording of the article ‘all appropriate legal, administrative and other measures’ was superfluous since the term ‘all measures’ sufficed to cover any of the measures that could be taken: S Deitrick (ed) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Prparatoires’ Martinus Nijhoff Dordrecht 1992, 455.

[11] art 19.