Child giving evidence in criminal and civil proceedings

Getting it right for every child & young person in Highland: interagency practice model & child protection procedures 2024

Children might be required to give evidence in court in criminal prosecution of suspected or reported perpetrators of abuse or neglect and also in civil proceedings, which would usually be in relation to children's hearing proofs. A child might be required to give evidence about the same matters both in a criminal trial and in a children's hearing proof application. If the child has been referred to a children's hearing for the same matter, then proof proceedings are likely to take place before any criminal trial.

Decisions regarding any criminal prosecution will be taken by the Procurator Fiscal. When a decision is taken to raise criminal proceedings in which the child or children will be cited as witnesses and asked to give evidence, the relevant social worker should discuss the case with the police.

The police will advise the Procurator Fiscal of any concerns about the risk of further abuse of, or interference with, witnesses in the case, and with any other children to whom the suspected or reported perpetrator has access. This information is vital to assist Procurators Fiscal and the court to make informed decisions about bail, and any additional special measures which may be required.

If a suspected or reported perpetrator of abuse is to be prosecuted, or where there are children's hearings proofs proceedings at which the child will give evidence, child witnesses should always be given information and support to prepare them for the experience of being a witness in court.

The CPPM may provide recommendations about bail and any necessary conditions for social work services, the Principal Reporter and Procurator Fiscal to discuss. The Sheriff will decide whether to grant bail or not. Agencies should consider the potential impact of an unsuccessful prosecution or hostile cross-examination of a child, and the implications for the future protection of that child and others.

Police and social work services should agree arrangements for convening planning meetings, setting up systems for sharing and updating information about the investigations progress, and co‑ordinating support. All relevant agencies and services should be involved in these discussions. Such cases require early involvement of the Procurator Fiscal and the Principal Reporter. Police and social work services should agree a strategy for communicating and liaising with the media and the public. If many families, parents and carers are involved, the local authority should make special arrangements to keep them informed of events and plans to avoid the spread of unnecessary rumour and alarm.

Local authorities and other agencies must consider a range of issues, including whether the child needs counselling or therapy before criminal proceedings are concluded. The needs of the child take priority, and counselling should not be withheld solely on the basis of a forthcoming prosecution or proof. There is a Code of Practice aimed at facilitating the provision of therapeutic support to child witnesses in court proceedings.

Where counselling does take place, the person(s) offering counselling may be called as witnesses to explain the nature, extent and reasons for the counselling. Welfare agencies should discuss therapeutic intervention with the Procurator Fiscal so that they are aware of the potential impact of such counselling on any court proceedings.

Special measures available for all child witnesses cited to give evidence include the following options:

  • evidence being taken by a commissioner (which means that the child's evidence is taken at a special hearing, which can take place out with the court, in advance of the proof or trial, and is recorded)
  • a ban on questioning by the person who is alleged to have perpetrated certain actions
  • having a support person present
  • screens so that the child cannot see the accused (in a criminal case) or other people who are entitled to be present (in other cases)
  • giving evidence via a CCTV link from another room within the court building or from a remote site, as appropriate (most often used in criminal prosecutions, or where the proof relates to offence grounds referred to a children's hearing and prior statements treated as evidence in chief)
  • prior statements, which can include JII recording treated as evidence in chief in criminal proceedings
  • in children's hearings proofs relating to non-offence grounds, the Reporter will seek to use the police and social work interview (the JII) in place of the child having to give evidence in person. This is a judgement call in each case and the use of a CCTV link cannot be ruled out as a possibility. Even if the Reporter does not cite the child as a witness, other parties may do so

As well as these special measures, the Sheriff or Judge can take a range of other steps to help the child give evidence and protect his or her welfare whilst giving evidence, for example by deciding in advance what questions can and cannot be asked, by agreeing the child should have regular breaks, and by limiting the duration of questioning.

The Children (Scotland) Act 2020 creates a new special measure which prevents parties to civil cases and children's hearings proofs, in certain circumstances, from personally conducting their own case. This would apply, subject to some exceptions, where a witness is a victim of certain conduct, including domestic abuse, or certain other offences. These provisions are not yet in force, but similar provisions do currently apply in criminal trials.

Consideration should be given as to who may act as a support person for the child. In all cases, the person citing the witness (e.g. the Procurator Fiscal or defence lawyer) will make an application to the court on which option is the most appropriate. The child's own views and those of the child's parent or carer should also feed into the decision-making process. The final decision on which option is the most appropriate rests with the Sheriff or Judge.

Professionals involved in supporting the child may be asked to provide information to the party citing the child to ensure that the court is provided with enough information about the child's needs to inform the decision about what special measures and other supports are required.

Section 271 BZA of the Criminal Procedure (Scotland) Act 1995 (inserted by the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019) provides that in respect of both solemn proceeding and in respect of certain listed offences, the court must enable all of the child witness's evidence to be given by means of a prior statement and/or a pre-recorded Commission hearing in advance, unless the court is satisfied that an exception is justified. These exceptions are if either the fairness of the trial or the child's best interests would be prejudiced by such a course of action, or, if the child is 12 or over, has expressed a wish to give live evidence, and it would be in their best interests to do so. The most efficient means of complying with the requirements of the Act will be that the child's evidence in chief will be given by means of his or her recorded JII; and that cross-examination and re-examination will occur by means of evidence taken by commissioner. If the JII is not suitable for use in criminal proceedings, all of the child's evidence will require to be taken by a Commissioner. This rule came into force in January 2020 in respect of many, but not all, High Court cases in 2020.

The Act requires there to be a ground rules hearing prior to evidence being taken by commissioner and specifies some issues which must be considered. The Act makes provision to allow for evidence to be taken by Commissioner to take place even before the indictment has been served. However, there remain significant legal barriers to holding Commissioner hearings in advance of service of an indictment. Therefore, many Commissioner hearings will continue to take place after an indictment has been served. Work is on-going to reduce the time between the offence being reported and the date on which an indictment is served. Improvements in facilities for witnesses to give their evidence in Commissioner hearings or by live TV link to court are in progress. (Vulnerable Witness (Criminal Evidence) (Scotland) Act 2019).

General principles

General principles that underpin the consideration and conduct of investigative activities in relation to children who may be harmed and those who may cause harm to others may be summarised as below.

  • The child's present feelings, views and future rights are respected and protected at every stage.                                                                                                                           
  • Processes are both careful and robust, promoting the safety of those involved by discovering the truth within the most harmful circumstances.                                                                                                                                                                                                       
  • The wellbeing of the child is the lens through which all decisions and actions are taken.                                                                                                                                                                          
  • Processes include early discussion between the lead agencies, co‑ordination and partnership with those responsible for the child's care.                                                                                                                                                                                                                                        
  • Each stage and any change or decision is explained in a way that makes sense to each child and those responsible for their safe care, taking into account culture, capacity, age and stage.                                                                                                                                                              
  • Support is provided for children and families involved in these processes.                                                                                                                                                                                      
  • Professionals involved are afforded the training and supervision that ensures a co‑ordinated, and child-centred process.                                                                                                                                                                                                                                   
  • Preparation and pace of exploration is patient and attuned to the impact of trauma upon the needs and feelings of each child.                                                                                                                                                                                                                           
  • Investigative processes are conducted in an environment which is child-friendly and amenable to those attending for the child's support.                                                                                                                                                                                                                                                
  • Processes are evaluated and improved to ensure adherence to standards.

Future developments

The Scottish Government is developing a framework for a child-centred Barnhaus approach which delivers trauma-informed support, justice and recovery for children who have experienced trauma. Scotland-specific standards for Barnhaus, based on the European PROMISE Quality Standards, are being developed and adapted for Scottish legal, healthcare, child protection and criminal justice systems. Highland is committed to implementing the Barnhaus standards to ensure services and systems are child-centred and trauma informed for all children and young people at risk of harm.