I Introduction

1.1 Children and the justice system

The events that bring a child to the criminal justice system can be confusing, upsetting, and possibly traumatic. In many cases, children will be the only witness to the crime they are asked to describe (e.g., child sexual abuse; Bala, Lee, & McNamara, 2001; Robinson, 2015). Thus, children’s statements can be the central evidence. Understanding influences on children’s evidence reliability, and how to adapt criminal justice processes to increase the quality of that evidence, is the central aim of this report.

A vast literature focused on the experiences of children in the justice system has clearly demonstrated that even preschool aged children are capable of providing detailed and accurate accounts of their prior experiences, if that information is elicited in a supportive and developmentally appropriate manner. This bottom line of children’s evidence quality is critical:

Children are capable of providing quality memory evidence, if adults are competent in eliciting that evidence.

In 2002, Louise Sas authored a compilation of history and literature related to the experience of children in the Canadian justice system (Sas, 2002). Sas’ report covers the historical treatment of children, and the state of the literature on children’s evidence at the time. The report traces the history from the groundbreaking Badgley Report (1986) to the day care sex abuse scandals of the 1990s, to the inception of the science related to children’s testimony. The current report aims to address developments since that seminal document was published and describe our current state of understanding of children in the justice system in Canada.

1.2 The reception of child witnesses in the justice system

There is now widespread recognition that children can be reliable and competent witnesses. But it was not always this way. As Sas clearly outlines in her 2002 report, historically there have been struggles in believing children’s accounts. While we have seen improvements in the belief in and participation of children in the legal system, critical biases against children’s evidence and barriers to their participation in the justice system remain, including how children’s evidence is collected (see Section IV on Child Forensic Interviewing), justice system professionals’ understanding of children’s capabilities (see Sections II, III, and IV), and justice processes like cross-examination (see Section VII on In-Court Evidence).

1.3 Children’s experiences in the justice system

Children’s involvement in the justice system will often include interactions with many different professionals: child welfare, police, medical, victim services, lawyers, judges, and other court personnel. Each of these interactions bring opportunities for relationship building and comfort, but also stress and anxiety. As we describe in Sections VII and VIII, there have been many important changes for children involved in the justice system in Canada that are designed to facilitate their participation. These changes seek to address the complexity of services and professionals involved in responding to child victims, and to adapt these processes to make them more developmentally appropriate.

Many of the changes in how children are treated in the justice system are borne of the understanding of how system-induced trauma can compound the already difficult experiences of children (Bala et al., 2001; Berliner & Conte, 1995; Department of Justice Canada, 2001; Sas et al., 1993). Testifying is a clear stressor for many children (Field & Katz, 2023; Hayes & Bunting, 2013) and has been demonstrated to have long term effects on mental health (Eastwood & Patton, 2002; Elmi, Daignault, & Hébert, 2018; Quas et al., 2005). The courtroom environment, in particular, appears related to higher stress levels (Nathanson & Saywitz, 2003; Saywitz & Nathanson, 1993), and anticipating upcoming court involvement has been linked to anxiety in children (Nathanson & Saywitz, 2015).

The concern about children’s stress during court proceedings has been addressed in creative and productive ways in court settings around the world. For example, at least one jurisdiction has implemented smart wrist bands to provide real-time physiological stress monitoring when children are questioned. This monitoring allows for the possibility of pausing questioning to introduce relaxation techniques or to end the interview if stress levels become too high (Rodriguez-Pellejero, Mulero-Henríquez, & Santana Amador, 2024). These measures, included as part of a comprehensive adapted courtroom process for children (e.g., child-friendly rooms, decompression rooms, high levels of support), can also inform us about children’s general stress. In one study, the monitoring indicated that children’s stress levels were significantly higher when waiting to be questioned and during questioning than they were at the time children left the courthouse, though overall children experienced a medium level of stress during court hearings (Rodriguez-Pellejero et al., 2024). Other studies that have explored children’s stress levels during traditional court situations have demonstrated that children experience high levels of anxiety before, during, and after trials (e.g., Hayes & Bunting, 2013). Such negative experiences in-court are later related to children’s feelings of injustice (Sumalla & Hernandez-Hidalgo, 2018). The impact of justice involvement on children is complex (Quas & Goodman, 2012). In some cases, children may experience testifying as empowering, even if stressful (Quas et al., 2005). In some circumstances, not testifying can have negative impacts, and, despite sometimes very negative experiences, the balance between the benefits and challenges of courtroom testimony will in many cases weigh on the side of testifying (Quas et al., 2005; Quas & Goodman, 2012). Yet, it is clear that unless (and sometimes even when) justice processes are adapted for children, the experience is likely to be confusing, upsetting, and stressful for many.

1.4 Modifying the criminal justice system’s expectations of child witnesses

As we describe in detail in this report, there is a considerable body of literature that can be relied upon to recommend how to interact with children in developmentally appropriate ways that will increase the reliability of their evidence and facilitate their recovery. Alignment of what we know about children’s capabilities with what we ask of them is essential in ensuring we elicit the best quality evidence and provide them with a procedurally-just experience.