CLUELESS IN COURT

Police, magistrates, social workers and prosecutors all need specialised knowledge in dealing with children

Across the Sub-Saharan region, courts have a recurring problem with cases involving child witnesses in matters involving sexual abuse or violence. I’ve long lost count of judgments about trials that collapse because of mishandling of a child witness, or convictions that are overturned on appeal because the higher court finds the trial court was wrong about some aspect of how to treat a child witness.

That’s why I was so intrigued by a new report, out this week —

“Adjudicating Sexual Offence Matters Involving Children as Victims ”—

commissioned by the University of Pretoria’s Centre for Child Law, with the Child Witness Institute.

A number of presiding officers, both magistrates and judges, who deal with trials in SA involving child witnesses, were interviewed for the report. Asked a series of probing questions, they were unanimous in urging specialised training for presiding officers who deal with child witnesses.

The problems they face every day appear overwhelming. Yet there are almost no minimum criteria required before a judge or magistrate may hear a case involving a child witness —

something they believe should change.

Their greatest area of concern relates to prosecutors. They said that, in general: prosecutors don’t consult beforehand with child witnesses due to testify in a case; they don’t know how to question children properly; and they often don’t understand the expert evidence given in cases.

The interviewees were also concerned that child witnesses are not adequately prepared for court and, without training themselves, the intermediaries used to create a buffer for a child witness are “not confident enough to convey the meaning of a question to a child”.

Child witnesses in trials are afraid, nervous and emotional, and often cannot explain themselves verbally.

Also flagged were problems with malfunctioning technical equipment, as well as medical and forensic evidence that is often inadequate or even absent.

The interviewees agreed that they need specialised knowledge about children’s rights. They need to be up to date with case law and should have enough medical knowledge to understand medical reports and evidence. They should be sensitised about the treatment of child victims and witnesses, and should know about child psychology, including memory, language, moral and sexual development. They should understand what grooming is and how it happens.

The report also dealt with technical legal questions. Judges spoke of their frustration, for example, when they aren’t sure of their power to intervene if a defence counsel were to bully a child witness: would that amount to “descending into the arena”?

A wider problem

I spoke to one of the authors of the report, Karen Hollely of the Child Witness Institute. She said most of the institute’s work involves training in Southern African countries, and it has found the same problems all over, with police, magistrates, social workers and prosecutors all needing specialised knowledge in dealing with children.

Hollely had just come back from Zimbabwe where, at the invitation of the Judicial Service Commission, the institute had run training for magistrates.

In SA, however, there is clearly no standardised training for judicial officers focusing on knowledge required for cases of violence against children. Interviewees said there had been a period when training was offered that was pertinent and helpful. But it has since been taken over by the SA Judicial Education Institute, and is no longer of the same quality.

That institute falls under the office of the chief justice, who clearly needs to hear the concerns of the magistrates and judges interviewed for the report, and read its helpful findings.

If the problems listed in the report — from broken equipment to lack of training — are to change in SA for the benefit of all child witnesses, it’s going to need the buy-in of the chief justice.

So, right here, in the very first days of his term, is yet another important challenge for new chief justice Raymond Zondo.

It won’t make the headlines as his state capture commission did, but it could make a great difference in the lives of children who give evidence in court.