Victim and Witness Rights

Section 11(2): Right to protection of children and young people

This protection extends to any person aged under 18 years of age. The right to protection of children and young people could be interpreted to include a broader range of children’s rights recognised in the Convention on the Rights of the Child, including the right to participation. Public Authorities must adopt special measures to protect children and young people, and the best interests of the child must be taken into account in all actions affecting a child.

Investigation stage
Some relevant considerations for victims when considering the concept of the right to protection of children during the investigation stage would include:

  • children who are victims have a right to give statements to police if they are mature enough. This should be done in a way that supports them to give the best possible evidence, including having a support person present and asking questions in an age appropriate way.
  • public authorities (e.g. ACT policing and Care and Protection Services) may have a positive duty to protect children from physical harm.

Case example (prevention from degrading treatment or punishment, right to respect for private and family life, rights of the child)
The applicant alleged that she was raped by two men when she was 14 yrs old. The police investigated the allegation and referred it to an investigator, but no action was taken until one year later when an investigator proposed that the case be closed. The main reason for this was the lack of resistance on the applicant in response to the alleged rape and that, based on the statements of the alleged perpetrators, the applicant had not shown any signs of distress after having sex.

The European Court of Human Rights found a violation of obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, as the authorities failed to fully investigate all the surrounding circumstances of the allegation, and did not sufficiently assess the credibility of conflicting statements made by different witnesses. It also found that little was done to test the credibility of the version of events of the accused.

The Court criticised authorities for attaching little weight to the particular vulnerability of young persons, and the special psychological factors involved in cases concerning the rape of minors.

Source: M.C. v Bulgaria (Application no. 39272/98) European Court of Human Rights (Date of decision: 4 December 2003).

Court stage
Some relevant considerations for victims who are children would include:

  • children who are victims have a right to give instructions to a legal representative if mature enough (A & B v Children’s Court of Victoria)
  • this right may also be relevant when considering whether children can be compelled to give evidence in court: R v YL [[2004] ACTSC 115]
  • application of section 10 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) may be a relevant human rights consideration, which applies if a child is not separately represented by someone else, and the court considers that the child should be represented by someone else, the court may:
    – order that the child be separately represented by someone else; and
    – make any other order it considers necessary to arrange the separate representation.

Case example (right of children and young people)
Fitzroy Legal Service (FLS) has protected a young girl from having to testify against her alleged perpetrators in a criminal trial. The young girl and her family believed that testifying and being crossexamined would cause her serious harm. FLS advocated in favour of her choice not to testify and was successful in doing so. They achieved this by raising section 17 of the Charter, which enshrines the protection of families and children.

They argued that protection of her rights as a child and protection of the family should be given due regard when determining whether or not the young girl would be required to provide witness testimony. The Tribunal agreed that she should not testify, and consequently provided her with financial assistance in recognition of the trauma suffered by her.

Source: Fitzroy Legal Service, Submission to the Inquiry into the Charter of Human Rights and Responsibilities Act 2006, 15 June 2011.

Post Court

  • public authorities may have a positive duty to protect children from physical harm; this duty would extend beyond the conclusion of the court process, and may be relevant when an offender is being released from custody after serving their sentence.