All tan­gled up in court

More pro­tec­tion should be given to chil­dren caught in court cases, be they vic­tims or wit­nesses of a crime.

The Star Malaysia - - Focus - By YUEN MEIKENG meikeng@thes­tar.com.my

THE court­room can seem like a scary place to a child.

Even more so if the child is a vic­tim or wit­ness to a crime com­mit­ted by their own par­ents, guardian or fam­ily mem­ber.

It can be dif­fi­cult and trau­ma­tis­ing if they have to be in the same room as their per­pe­tra­tor.

How­ever, there have been in­stances where the chil­dren are not sep­a­rated from the ac­cused, who may be their main source of sup­port like their par­ents.

As some re­main in the ac­cused’s cus­tody, they are sub­jected to fur­ther abuse, pres­sure or threats so that they will tes­tify in favour of the ac­cused.

It gets murky be­cause there are no clear poli­cies that state a child wit­ness or vic­tim must be sep­a­rated from the al­leged per­pe­tra­tor dur­ing the course of the trial, points out lawyer Christina Teng.

She stresses that the law has to be clear that a child wit­ness or vic­tim should never be in cus­tody, care and con­trol of the abuser or the abuser’s fam­ily at all times.

“This is to pro­tect the child and pre­vent wit­ness tam­per­ing. This is most rel­e­vant in mur­der, abuse or as­sault cases, es­pe­cially when state­ments are to be col­lected.

“Such a loop­hole has al­lowed the child to be con­trolled by the abuser, pre­vent­ing them from talk­ing,” she says.

This sit­u­a­tion could in­flu­ence or cause duress to the chil­dren.

“We ap­peal for rel­e­vant laws in­clud­ing the Child Act and Wit­ness Pro­tec­tion Act to be re­viewed and amended for bet­ter pro­tec­tion of the chil­dren,” she urges.

Teng adds that the child should first be con­sid­ered to be taken care of by some­one fit and proper within the vic­tim’s fam­ily, in­stead of be­ing sent to a wel­fare cen­tre which may feel for­eign to the child.

“Meth­ods of col­lect­ing child wit­ness state­ments should be im­proved, such as in a suit­able and friendly en­vi­ron­ment.

“Stan­dards of wel­fare cen­tres should also be im­proved as a safe haven for the kids,” she adds.

Suri­ana Wel­fare So­ci­ety Malaysia ex­ec­u­tive di­rec­tor Scott Wong says the need for stronger child wit­ness pro­tec­tion is a long-stand­ing is­sue.

Al­though child wit­nesses are pro­tected in Malaysia, “it’s not enough”, he says.

“The un­der­ly­ing main point is to look into the best in­ter­est of the child. Malaysia has signed the United Na­tions Con­ven­tion on the Rights of the Child years ago.

“With that in mind, child vic­tims or wit­nesses should not be put un­der the cus­tody of the ac­cused as it will sub­ject the child to po­ten­tial abuse and af­fect their ca­pa­bil­ity to tes­tify,” he says.

Wong says the child could eas­ily be sub­ject to duress, emo­tional abuse or ran­som so that they tes­tify in favour of the ac­cused. (see Ex­perts: Sep­a­rate chil­dren from the ac­cused on next page)

“Par­ents could threaten the kid, that if the child says some­thing bad about them in court, the po­lice will take them away and the child will be left alone.

“In that sit­u­a­tion, of course the child will be fear­ful and will­ing to forgo any­thing in­clud­ing sex­ual abuse,” he il­lus­trates.

While it isn’t the best so­lu­tion, Wong says the child could be put un­der the pro­tec­tion of the So­cial Wel­fare Depart­ment (JKM).

“It’s the so-called lesser of two evils. You have to take into ac­count the sit­u­a­tion,” he says.

In or­der for the chil­dren to tes­tify in a neu­tral and com­fort­able way, Wong says the court should have the fore­sight to look into the sit­u­a­tion as to avoid putting them un­der pres­sure.

“For ex­am­ple, if the par­ent is in­ca­pable of tak­ing care of the child be­cause he or she is a drug ad­dict, then the court should not grant them cus­tody,” he adds.

While some law pro­vi­sions do pro­tect child wit­nesses and vic­tims in court, in­clud­ing al­low­ing them to tes­tify through video links, many court­rooms are still lack­ing such ameni­ties.

Bar Coun­cil child rights com­mit­tee co-chair­man Ajeet Kaur says all courts should be equipped with the nec­es­sary fa­cil­i­ties and trained per­son­nel to han­dle child wit­nesses and vic­tims.

“But many court­rooms are still not equipped with the video link fa­cil­ity.

“In many in­stances, when the video link fa­cil­ity is not avail­able, the child sits in the same court­room as the ac­cused.

“A white­board is used to block the child from see­ing the ac­cused. But this falls short of min­imis­ing the trauma to the child,” she ex­plains.

It’s the duty of the deputy pub­lic prose­cu­tor (DPP) to en­sure that the court fa­cil­i­ties are work­ing prior to the child wit­ness’ ap­pear­ance in court.

“If there is no live link video fa­cil­ity the DPP has to en­sure that a screen is avail­able,” Ajeet adds.

She high­lights that the court has an im­por­tant part to play when bail is granted to the ac­cused.

“Con­di­tions can be im­posed on the ac­cused to en­sure that the ac­cused does not have any form of con­tact with the child and the child’s fam­ily,” she sug­gests.

In­stead of re­mov­ing the chil­dren from a safe and fa­mil­iar en­vi­ron­ment dur­ing the course of the trial, Ajeet feels that it is the ac­cused who should be barred from in­ter­act­ing with the kid.

“Thus, the con­di­tions im­posed when bail is granted is im­por­tant.

“By re­mov­ing a child from the fam­ily home, the child will feel that the child has done some­thing wrong and is be­ing pun­ished for it.

“Hav­ing said that, there may be sit­u­a­tions where the fam­ily home may not be con­ducive for the child to stay pend­ing the out­come of the trial.

“The only avail­able al­ter­na­tive is to have the JKM take the child into cus­tody, with the child’s school­ing needs be­ing looked into,” she says.

Ajeet says one way of min­imis­ing the trauma on the child is to record the ev­i­dence soon af­ter a po­lice re­port is lodged.

“In re­al­ity, po­lice in­ves­ti­ga­tions take time to com­plete de­pend­ing on the com­plex­ity of the case.

“Young chil­dren have short mem­ory spans and may for­get the de­tails of what tran­spired.

“By video record­ing the ev­i­dence of the child, the ev­i­dence is kept in­tact,” she says.

An­other party that should play a part in se­cur­ing ev­i­dence of a child wit­ness are doc­tors.

“SCAN (Sus­pected Child Abuse and Ne­glect) teams or OSCC (One Stop Cri­sis Cen­tres) have been set up at govern­ment hos­pi­tals to en­sure that there is min­i­mum trauma on the child while be­ing ex­am­ined by the doc­tors.

“The med­i­cal his­tory of the child is to be taken once only to min­imise the trauma in the child.

“How­ever there have been times when the staff have not been sen­si­tised and ask the same ques­tions re­peat­edly.

“Judges should mon­i­tor the trial process by en­sur­ing that ageap­pro­pri­ate ques­tions are asked by de­fence coun­sels,” Ajeet points out.

Mean­while, the Women, Fam­ily and Com­mu­nity De­vel­op­ment Min­istry as­sures that the JKM will step in to res­cue and pro­tect chil­dren in need of care, es­pe­cially vic­tims of abuse and ne­glect, ir­re­spec­tive of the stage of ju­di­ciary pro­ceed­ings.

“The pro­tec­tion will be given ac­cord­ing to the Child Act. The chil­dren can be placed in fam­ily­based care, ei­ther by keep­ing them with their par­ents, guardian, a fit and proper per­son, foster par­ents or in a cen­tre for a spec­i­fied pe­riod.

“There is no ‘one size fits all’ when it comes to who is the best to take cus­tody of the child as ev­ery case is unique.

“Nonethe­less, the best in­ter­est of the child will be the guid­ing rule in de­ter­min­ing the so­lu­tion,” it says in a state­ment.

The min­istry will also boost ca­pac­ity build­ing and the skills of court of­fi­cers in han­dling cases in­volv­ing child vic­tims and wit­nesses.

“There are train­ing cour­ses pro­vided for courts, DPPs and JKM of­fi­cers in ex­tract­ing ev­i­dence from chil­dren.

“More cour­ses are con­ducted by the Ju­di­cial and Le­gal Train­ing In­sti­tute,” the min­istry says.

The Chief Regis­trar of the Court has pre­vi­ously for­mu­lated a guide­line in han­dling sex­ual of­fences against chil­dren in line with the Sex­ual Of­fences Against Chil­dren Act 2017.

The guide­line among oth­ers high­lights the roles of the po­lice, DPP, Le­gal Aid bu­reau, courts and JKM in pro­tect­ing child wit­nesses or vic­tims in sex­ual crimes.

“The guide­line also speeds up case man­age­ment of sex­ual of­fences against chil­dren,” the min­istry says.

In line with the Act, the Spe­cial Court for Sex­ual Crimes Against Chil­dren in Putrajaya was equipped with the Court Record­ing Tran­scrip­tion, au­dio-vis­ual sys­tem, child wit­ness room and

wait­ing room.

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