Opinion: Mary Glasgow

In Children 1st’s experience, what is best for the child and best evidence are inseparable. A child who feels traumatised will never be able to give their best evidence. That has implications for us all. If we cannot be assured that a child, whether complainant, witness or accused (if they chose to give evidence), has given their best evidence, can we be assured that a trial is fair?

As Scotland’s national children’s charity we have an in-depth understanding of child development and trauma, combined with many years’ experience of supporting children throughout their journey from disclosure of abuse to recovery from their experiences. We have been involved in work to improve children’s experience of justice, from the introduction of special measures to Lady Dorrian’s High Court Guideline on Taking Evidence of a Vulnerable Witness by Commissioner. Despite these positive changes, too many children continue to tell us the system prevents them giving their best evidence. Some still feel it has done them more harm than being abused.

The tone and approach in which evidence in chief and cross-examination are taken can have a major impact on children. So too do delays in the system and the lack of clarity about where to turn for information and support. What children often need most is the reintroduction of stability when they feel that disclosure has caused their world to crumble. So while we welcome the presumption to pre-record children’s evidence set out in the Vulnerable Witnesses (Scotland) Bill, it will only tweak a system that is not designed around an understanding of children’s needs. The bill will improve things but will not deliver the best evidence.

To address this for every child, we need a wider vision of transformation. Other European countries use the “Barnahus” approach, pioneered in Iceland, a child-friendly house where a child meets all the professionals involved in their journey from disclosure to recovery. Children 1st have long championed Barnahus, which was recently endorsed by Holyrood’s Justice Committee which called for the Scottish Government to lead its adoption in this parliamentary session. The Scottish Courts & Tribunals Service Evidence and Procedure Review also called for a transformation in support for children and other vulnerable witnesses.

Barnahus is founded on human rights, including both the accused’s right to a fair trial and the child’s right to recovery support, and an understanding of child development. It is not a single model; its national iterations are based on 10 European-wide best practice standards adaptable across differing systems of justice, child protection and health.

Acting now to develop a Scottish Barnahus which initially meets some of the standards (for example those around information, child-friendly environments and a child’s and family’s wider support and recovery needs) would start to reduce significantly the harm children currently experience and the impact this has on their evidence. As Lady Dorrian told the Justice Committee: “The idea of a Barnahus as a very good space for interviewing children could be developed now.”

Scotland’s approach to other Barnahus standards, such as the forensic interview, must be considered much more thoroughly. From a legal perspective it is right to ask whether a minimum approach to interviewing children would undermine the principle that evidence must be tested to avoid a miscarriage of justice. Equally, from a child development perspective, it is right to ask whether in responding differently to child complainants and witnesses, we should also change our response to the child accused.

Children 1st’s expertise lies in children and child development, rather than the intricacies of Scots law. We cannot and would not presume to answer these questions alone. Nor, would we argue, should any single part of the justice system. Only by coming together and examining these questions through a shared lens that encompasses the principles of Scottish justice, understands child development and upholds human rights will we achieve the indivisible aims of obtaining best evidence from children without causing them further harm.