Executive summary

Children and the justice system

Children’s statements are often the central evidence in cases involving children as victims and witnesses. Critically, children can provide quality memory evidence, if adults are competent in extracting that evidence. In this report, we review children’s capabilities, limits on their capabilities, challenges in providing evidence, and ways to improve children’s justice experiences. Our focus is on evidence-based conclusions and we review key aspects of cognitive and developmental research that will help the reader understand children’s role as victims and witnesses in the justice system.

A key challenge for children who are involved in the justice system is the stress of unfamiliar and often difficult justice processes. Although not all children experience forensic interviews and testifying in court as stressful, many do. At times, the heightened level of emotion can impact children’s ability to provide evidence. There is now widespread recognition that adapting justice processes to children’s special circumstances and capabilities will improve children’s experiences, increase the quality of their evidence, and provide better access to justice. One key way in which the processes should be adapted is through justice professionals gaining an understanding of children’s cognitive and social development. This report reviews the current state of this knowledge.

Children’s cognitive abilities and their impact on children’s evidence

Children’s maturing cognitive skills play an important role in their ability to provide testimony. In particular, executive functioning skills (i.e., a set of cognitive processes that help set and complete goals), which develop throughout childhood and into early adulthood, support children, youth, and adults in providing testimony. For example, these skills can influence whether a child can resist suggestions made to them by an adult, or whether a child is prone to guessing in response to questions. Importantly, the development of these cognitive skills has been found to be delayed or at a deficit for maltreated children.

Professionals who work with child victims and witnesses are often interested in how to promote truth-telling in children. Children’s conceptualization of lies begins during the preschool years, but a more stable concept of truth and lies does not emerge until later childhood (approximately 10 years of age). Children who fail to demonstrate an understanding of truth and lies may still be honest, and children who show a sophisticated understanding may still tell lies. One factor that has been found to increase children’s honesty is promising to tell the truth, but this is less effective with very young children (aged 3 to 5 years).

Children are often asked to provide details about the timing, duration, and frequency of the events (i.e., temporal information) that have brought them into contact with the justice system. Such information is seemingly reasonable to request and may even be legally required in some cases. However, asking for information only makes sense if a child has the cognitive skills to provide it. Although there are exceptions, children generally struggle to provide temporal information. Importantly, this difficulty is not related to their ability to recall other accurate details of their experiences.

Language development in children

Children’s emerging communication skills can pose challenges for the legal system in obtaining detailed and accurate reports. Failure to acknowledge the developmental differences between children and adults can result in miscommunication and lead to unjust outcomes. Sometimes children use a word differently to adults or before they understand its meaning, or they guess the answers to questions that contain errors and ambiguities. These behaviours can lead to miscommunication or misunderstandings of the child’s experiences. For example, children have a tendency to guess if they don’t know the answer to questions asked in a yes/no format. Concerningly, children are often asked age-inappropriate questions, which can influence the accuracy of their responses and, ultimately, legal outcomes. Thus, it is important for adults to understand how language and certain types of questions can influence the clarity and accuracy of children’s reports.

Memory in children

Memory is a subjective experience. The purpose of the memory system is to understand and interpret the world around us and to help us make predictions about the future, not to retain precise and detailed information about prior experiences. This means memories are prone to error. There are several key themes of memory that can be used to interpret children’s evidence:

There are several additional influences on memory, including a child’s age (older children generally provide more information and are less suggestible than younger children); the degree of prior knowledge a child has about an experience (having prior knowledge typically makes events easier to understand and report, but can interfere with remembering); the level of stress experienced during the event (stress can have both positive and negative effects on memory); the duration of time between the event and when the child recalls that event (generally, memories fade with time); and how often a child experienced similar events (experiencing repeated events helps children remember the things that are the same across experiences, but makes discriminating between similar experiences difficult). All of these factors will influence how children should be questioned about their experiences. Familiarity with the research on these topics is critical for interpreting children’s evidence.

Children’s disclosure processes

Children’s disclosure of abuse typically follows four broad patterns: disclosers, non-disclosers, delayed disclosers, and children who recant an earlier disclosure. Children’s reluctance to disclose (non-disclosers, delayed disclosers, and recanters) is often related to the dynamics of sexual abuse and may be more likely when the child has a close relationship with the perpetrator, when the child is not well supported by family, when the abuse is more severe, and when the onset of abuse is at an older age. Reluctance to disclose is common among children who have been abused and should not necessarily be considered a sign of false allegation.

When children do disclose, they often do so because of internal feelings (e.g., nightmares, anxiety), external influences (e.g., being questioned), or evidence of the abuse was discovered. However, when children do not disclose, it is often for reasons like worry about the negative consequences of doing so (e.g., jailtime for the accused), feelings of embarrassment or shame, worry about getting in trouble, fear of not being believed, or a lack of understanding that the behaviour was inappropriate. Delays to disclosure and recantations are often viewed negatively in the courtroom. There is a need to educate triers of fact on normal disclosure processes.

Child forensic interviewing

There is a large and robust literature supporting evidence-based forensic interviewing of children. What children are willing and able to tell us is profoundly influenced by how we elicit their information. When questioners provide children with socioemotional support and the opportunity to share what they remember at their own pace, in their own words, children’s testimony can be accurate and informative. An evidence-based child forensic interview typically consists of the following components: introductory phase (with brief explanation of roles and room set up, ground rules, and narrative practice), transition to the topic of concern, substantive phase where children are encouraged to provide a narrative of the event in response to predominantly open-ended questions, a break, follow-up questions to allow interviewers to ask for any specific information that may have been omitted during the narrative account, and a respectful closure.

High quality child forensic interviews will focus on open-ended invitations for the child to provide a narrative response. Wh- questions (e.g., who, when, where, why, how, and narrow “what” questions) are also preferable to closed questions (i.e., questions that narrowly restrict the content of children’s responses), the latter of which often results in the highest rate of guessing. Compared to other question types, open-ended questions elicit longer and more accurate responses and are more likely to access details the child remembers, rather than details the interviewer wishes to hear about (which may or may not be something the child remembers). Children’s ability to answer open-ended questions improves with age, but even preschoolers can provide narrative details in response to such questions.

Children’s in-court evidence

It is clear that the courtroom context is unique and often stressful for children. The majority of child witnesses experience anxiety and show evidence of stress symptoms, including sleeping and eating problems, depression, bed-wetting, and self-harming while waiting to go to court and the courtroom experience itself can be a substantial stressor with long-term consequences for children. Court preparation programs can provide children with knowledge and experience about upcoming proceedings and have been shown to have beneficial effects on children’s well-being.

There is a disconnect between the standard approach to cross-examination and children’s ability to provide accurate evidence. The questioning style of cross-examination is largely comprised of closed, leading, and yes/no questions. This style of questioning is highly problematic for eliciting accurate statements from children and is emotionally challenging for children. By its very nature, cross-examination is designed to elicit what the adult wants the child witness to say, not to access the child’s truthful responses. Cross-examination has been described as one of the worst parts of court for children and has been described as a “how not to” guide to question children. Several countries have made policy advances that retain elements of traditional cross-examination but also move closer to appropriately questioning children in court.

In an effort to improve the experience for children and facilitate their provision of evidence, changes were made to the Criminal Code and Canada Evidence Act (Bill C-2) that came into force in 2006. Changes included presuming competence of children under the age of 14 years, removing the public from the courtroom, and the provision of testimonial aids (e.g., testifying from behind a screen, with a support person, or from another room via closed circuit television).

Research has indicated that the use of such testimonial aids decreases testimonial stress. Further, children questioned via video either show increased accuracy and resistance to suggestion with this approach relative to in-person questioning, or no differences, compared to live testimony. Other recent advances include children testifying in court remotely (e.g., from a comfortable environment) and the use of trained support dogs for children during interviews and testimony. The evidence is growing that the use of dogs can have benefits for many children, including reducing stress and anxiety.

Child Advocacy Centres

In recognition of the challenges posed to children who are victims of and/or witnesses to abuse and their families, there has been an international movement towards coordinating the service providers who work with the children and families at Child Advocacy Centres (CAC or Child and Youth Advocacy Centres, CYAC). CACs provide a child-focused process in a friendly setting, usually in one location, where service delivery partners including medical, child protection, police, mental health, victim support and advocacy, and prosecution, where appropriate, work together in a coordinated way to support children, youth and their families. There is growing evidence that CAC-based investigations reduce stress and trauma experienced during abuse investigations for children and families. Further, CACs feature more evidence-based practices and can serve as expert hubs. A recent study of British Columbia Child and Youth Advocacy Centres found that for every dollar invested in a CAC, $5.54 in social and economic value was created.

Recommendations

From the in-depth review of the literature relating to children’s participation in the justice system, three key recommendations are made:

  1. Increase developmental training and education for legal professionals who interact with children.
  2. Expand access to Child Advocacy Centres and their services.
  3. Consider and investigate alternatives to traditional cross-examination of child witnesses.