Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility.

• Author: Bala, Nicholas

Until the late 1980s, the justice system in Canada regarded children as inherently unreliable and their rare appearances in court were often extremely stressful. Since then, there have been dramatic changes in the awareness of child abuse and growing recognition that children can be highly reliable witnesses, if questioned appropriately. There have been legal reforms and changes in professional practices that have allowed many more children, especially victims of abuse, to testify in criminal court. There remain, however, many challenging issues in in balancing the need to protect children with respecting the rights of accused persons.

The Context: Ending the myth of the unreliability

The old laws about child witnesses (and female victims of sexual assault) were based on the belief they were inherently untrustworthy and prone to fantasy about abuse. The Supreme Court of Canada required that jurors were to be warned of the 'inherent frailties' of a child's evidence, even if the child was a sworn witness. No efforts were made to modify the court process to facilitate children's testimony. In this social and legal environment, the police and healthcare professionals continued to receive few reports of child abuse.

The women's movement of the 1970s helped create an environment where adult survivors of childhood abuse began to come forward with accounts of their experiences. By the 1980s, encouraged by media reports and growing professional sensitivity, larger numbers of adult survivors began to overcome their feelings of fear, guilt and shame to disclose what they had suffered in childhood. The Canadian public was shocked by detailed disclosures from survivors of child abuse in schools, juvenile institutions and sporting organizations across the country. Many of the cases involved some of society's most vulnerable children, those without parents to protect them, placed by the state in child welfare institutions and in the now-closed residential schools for Aboriginal children. There was also a growing awareness that much child abuse is perpetrated by family members or trusted community figures.

As such disclosures became more commonplace, there was more psychological research into the reliability of child witnesses. Studies revealed that, when questioned in an appropriate way, children can be reliable witnesses and that even young children can distinguish fantasy from reality. With the growing awareness of the realities of abuse a more receptive environment for disclosures of abuse by children developed. Children were encouraged to report abuse, resulting in a dramatic increase of such reports. It became clear that fundamental legal reforms were required to allow children to testify effectively. Canada's Parliament responded by enacting significant reforms.

Competence to testify

Before a child can testify, the judge must be satisfied that the child is 'competent' to be a witness. Historically, witnesses could only testify under oath and children were expected to be able explain that they would 'burn in the eternal fires of hell' if they lied under oath. Canada enacted its first legislation on child witnesses in 1893, permitting children to testify even if they could not explain 'the nature and consequences' of an oath, but only if they demonstrated their understanding of the "duty to speak the truth."

Their 'unsworn testimony' required independent evidence or corroboration if there was to be a conviction...