Sometimes you read an article and have to re-read it because you can't absorb the information as fact first time round. This happened to me a few days ago.
In Scotland victims of child sex abuse are given access to supposedly confidential counselling under a system put in place to protect vulnerable witnesses. Tam Baillie, Scotland's Children's Commissioner, has demanded a review of laws designed to protect these children from what he called 'the unintended consequences of well-intentioned legislation'.
Why is Mr Baillie, writing in the specialist journal Scottish Family Law Association Bulletin, demanding a review? Because the victims of child sex abuse are being traumatised by courts forcing therapists to reveal their clients' secrets to abusers. Mr Baillie warned that notes from confidential counselling sessions were being used in criminal cases against the wishes - and interests - of children and young people. He said he was aware of cases where both defence agents and prosecuters were using confidential counselling notes in court.
Crown Office guidance is that fiscals should not routinely use evidence from counselling. However, the Crown recognises defence teams may wish to do so, especially if they are arguing a child has been “coached” to complain of abuse. - The Herald
He accepts new evidence brought up in therapy should be shared with the authorities, but he objected at the prospect of intimate feelings - including those expressed using art therapy - being made public. He wants to see rules changed so that notes can only be revealed with the permission of the children and has argued this could be done by amending the Vulnerable Witnesses Act of 2004.
It's understood the Cross-Party Group on the Survivors of Child Sex Abuse raised the issue with Justice Secretary Kenny MacAskill last year after being alerted to it by Barnardo's. A spokeswoman for the group said:
"... The need to avoid further damage to abused children is fundamental - the trust and confidentiality between the child and therapist must be seen as integral to their recovery."
Many people have counselling for a range of reasons. Some pay privately and some are referred through the NHS. Would anyone be happy to know their deeply personal thoughts and feelings could be used in a court case, and more importantly by both defence and prosecutors, without their knowledge or consent?
These children will most probably be told what they say to their therapist is just between the two of them, to establish a trusting relationship. In all innocence they will believe the adult(s) and, in the case of sex or other abuse, they may be relieved to tell someone who promises 'not to tell anyone'.
Mr MacAskill ought to get this legislation amended with immediate effect so as these young people are protected. He managed to rush through, in a matter of days, legislation regarding the voting rights of those convicted of crime, so it can be done speedily. Allowing such a loophole - through legal guidance notes - makes a mockery of our declaration that we care for children. Maybe some children but certainly not all. We need to protect each and every one to the best of our ability and we expect our justice system to do that. So much is said about the Human Rights Act, which I consider requires a root and branch review. Where are all those who wave the HRA card in judicial cases? If ever a person's rights were being dismissed or ignored, this is it.
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The therapy sessions should be taped and the tapes listened to by the Judge. He should then set the parameters he will allow to both the prosecution and defence in chambers regarding the bias/coaching of any counselling.
In Scotland because of the the need for corroborative evidence, i.e. a second victim, the bar is already set too high to the accused benefit.
Allowing a barrister to bully and browbeat a child on such a technically obtuse issue such as what constitutes "coaching" is just adding insult to their agony.
Very pertinent post SB. I have a vested interest in this and Im glad you have raised the issue.
RA, I admit to knowing nothing about this side of the law, but if it currently is as reported, then it definitely requires reviewing. Your suggestion sounds far more sound to me.
Thanks TT. We can't afford to let any child be further stressed because of bad legislation.
Agreed, SB.
I have always said that obtaining access to information is a pursuit of power personified.Be it for self interest or for gain.
. . . usually to someone else's detriment or expense. This outrage is not an exception.The state and the organs of state have one overriding duty to it's citizens. Namely,to have a duty of care to protect and serve. We too as citizens have obligations to distinquish between what is right and proper and what is, as in this instance so wrong. A society can only be enriched of worth by the care and consideration that it extends to it's less fortunate. That includes those seeking justice for harm, hurt or injury done unto them. I strongly suggest the legal establishment put it's house in order and I also strongly suggest the powers of governance have teeth to penalise those involved in this horse trading of justice.
Equally significant is where prisoner asks for trial papers to form an appeal. The statement(s) made by the abused child will be in this package. This is used by the prisoner to re-live his action. It may be traded amongst other paedophiles who will also 'enjoy' reading them.
We can't allow adults to play games like this with children Mek. It must be stopped.
Thanks wisnaeme for such a profound comment. Beautifully written.
Thanks for pointing that out John. It's an important part of the need for change.
the Crown recognises defence teams may wish to do so, especially if they are arguing a child has been “coached” to complain of abuse.
Are you saying "coaching" doesn't happen? It's clear from the satanic abuse scandals of the 80s and 90s it has in the past.
Of course I'm not saying that cabalamat. What I am saying is that the private thoughts of a minor should not be disclosed to the defendant's legal team in a case of abuse and willy nilly. Perhaps there needs to be an independent third party involved in such cases because I agree with you, coaching does happen. I'll say no more.
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