Could a ‘Bairn’s Hoose’ approach make our justice system more child friendly?
Mary Glasgow, Chief Executive of Children 1st talks about realising Child Rights within Scotland’s Justice System.
Successive Scottish Cabinet Secretaries for Justice have made it clear that courts are no place for children. Achieving this ambition and fully realising children’s rights to justice, care and protection in all areas of their lives, requires us all to be more radical in our thinking and more transformative in our action.
At Children 1st we’ve long campaigned, alongside others, for changes to prevent children and families being re-traumatised by the justice system and progress towards this in recent years has been considerable. The work of the Scottish Courts and Tribunals Service Evidence and Procedure Review and the passage of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act through Holyrood has led to widespread understanding that a court appearance can cause additional trauma for child victims and witnesses. The length of time court processes can take are hugely distressing and being forced to recount often traumatic events again and again can be extremely damaging. The patchy or non-existent follow on support for children and families and the failure to link to other processes such as child protection, lead children and families to tell us that their experience of justice and care has often had a worse impact on them than the crime they experienced or witnessed.
The measures in the Vulnerable Witnesses (Criminal Evidence) (Scotland Act) will provide a pathway for ensuring greater numbers of child witnesses give their evidence in advance of trial and will make the system less traumatic for those children who have experienced or witnessed the most serious crimes. These measures will improve but not eradicate the impact of adversarial approaches to gathering children’s evidence in court.
Dr Emily Henderson, the international expert on children’s cross examination:
“Thirty-odd years of empirical research have demonstrated that conventional cross-examination, with its preponderance of suggestive and confusing questioning tactics, is a veritable ‘how not to’ guide for obtaining best – that is to say, full and accurate – evidence from vulnerable witnesses.”
The legislation alone will not, therefore, deliver the transformation in child victims and witness experience of the justice system, or always secure the best evidence from children that we ultimately need.
This is why Children 1st warmly welcomes the commitment made by Humza Yousaf, Cabinet Secretary for Justice, that adopting a Scottish version of the Scandinavian Barnahus model (literally a ‘Child's House’) is the Scottish Government’s preferred destination for child victims and witnesses of abuse and violence. A Scottish version – a ‘Bairn’s Hoose’ would be the best way to get it right for children from the moment they tell their story, through to ensuring that the child and their family get the trauma sensitive support they need to recover. Although every country that has adopted the Barnahus model has tailored it to its own context, the common approach is to deliver all the services and support a children needs in one place, in a way that reduces trauma and supports recovery.
A Scottish Bairn’s Hoose could therefore be a core part of ensuring that we have a justice system that is able to do both what is best for children and best for securing evidence. It is not the only part.
If our shared ambition is about no child going to court, our thinking must encompass all children. That means not just child victims and witnesses to abuse and violence. It also means children who are involved in family law actions in the civil courts and children who have been accused of criminal behaviour.
Recent years have seen profound changes to how Scotland treats children who have been accused of criminal behaviour. The age of criminal responsibility has been raised from 8 to 12. The Justice Board and the Child Protection Leadership Group are considering whether there should be an extension of the Children’s Hearing System to allow 16 and 17 year olds who are not already subject to a compulsory supervision order to be considered for referral to the Reporter, rather than automatically processed in the adult criminal justice system.
We now understand the life-long impact of adverse childhood experiences (ACEs) through the impact of trauma and stress experienced. Making all aspects of our justice system ACEs aware in the way it deals with children will require a wholesale transformation. There is much to draw on from Getting It Right For Every Child (GIRFEC) in children’s services that can help other branches of Government adopt a child-centred approach. But realising the ambition that no court is a place for a child – victims, witnesses or accused – will ask fundamental questions of the ways we approach justice. How can we reconcile an adversarial approach – the basis of our justice system - with the need to avoid re-traumatisation while securing the best evidence? Children tell us they want to only tell their story once – can we devise a single interview which works for police, prosecutors, health and child protection while starting the child on the road to recovery? How do we truly address a child who is accused of criminal behaviour’s needs as well as their deeds? How do we make sure that no child is put in the position of being asked to testify against their parent in the criminal courts while being ordered to see that parent by the civil courts? How do we avoid our world-renowned hearings system becoming too legalistic and losing its focus on children’s needs.
There are no easy answers, but the first step must be to recognise that all the current improvement processes are not separate. We have reached the end of tweaking things here and adding special measure there. The time is ripe – our Parliament is ready – for a wholesale renewal, rooted in rights. Let’s make sure the justice system gets it right for every child!