TOM BLASS FINDS OUT WHY THE CHARITY CHILDLINE IS DETERMINED TO DRAW LAWYERS' ATTENTION TO CHILDREN'S NEEDSOn 13 May the national charity Childline is holding a conference -- 'Hearing Children's Voices' -- the aim of which is to raise and discuss the issue of children and the law.

The conference is no minor event.

Home secretary Jack Straw is making the keynote speech, and two of the world's most famous lawyers will be present -- Cherie Booth QC, will chair the conference, and Hillary Clinton is scheduled as a guest speaker.Conference workshops will cover a host of topics including: how to deal with very young witnesses; training lawyers to assist children in giving evidence, and maintaining the rights of defendants while making the often gruelling process of civil and criminal court proceedings less of an ordeal for children.Childline's director of policy and planning, Mary MacLeod, hopes that the conference will bring many of the issues that Childline deals with daily to a larger forum.

She says: 'We're hoping that the conference will persuade legal professionals that it is in everyone's interests to treat child witnesses equally to adult witnesses'.Ms MacLeod feels strongly that the current philosophy of judicial discretion creates a particular obligation on legal professionals to be 'alive to the vulnerability of children'.

First and foremost, Childline is a counselling and listening service -- and not a provider of legal assistance.

'Most of the time the children don't want us to get involved -- they really just want us to listen.'Where a child asks for a source of legal advice, Childline counsellors are able to make a referral to an institution such as the Children's Legal Centre at the University of Essex, or the National Youth Advisory Service (NYAS).

Recently, a 15-year-old refugee who arrived in the UK without her parents telephoned the helpline having discovered that she was to be moved from the children's home in which she was living, away from the set of friends that she had already established, and away from her school.

Childline refer red her to the NYAS, which was able to appoint an advocate who challenged her local authority, and the order for her transfer was overturned.NYAS was founded on 1 January 1998, but has its roots in two charities, Independent Representation for Children in Need (IRCHIN), which was established in response to a need for better representation for children in private court proceedings, and the Advisory Service for Children (ASC), which advised children in the care of social services and those leaving this care.

The children that NYAS represents come to the organisation via several sources.

Many telephone the NYAS helpline, there are referrals from the Childline office, and from welfare officers, doctors, lawyers, teachers and the police.

The charity operates both through its own in-house team of three solicitors, and a large network of eligible and approved advocates around the country.

Thea Henley is the director of legal services for NYAS and says: 'One of the strengths of NYAS is that we're independent, and we're confidential'.Most professionals working with or for young children agree that the legal infrastructure in place, in terms of providing representation for children, is fairly strong.

However all are aware of the lacunae that can let children down as they pass through the justice system.

A police officer who specialises in cases involving children remarks: 'I think that the criminal justice system has looked closely at its own needs, but not at the needs of children'.

He has seen that the uncertainty of proceedings can be extremely corrosive to children's confidence.

And while he says that the standard of prosecution provided by the Crown Prosecution Service is often high, barristers are changed with alarming frequency, confusing both children and defendants.One person who has studied in some depth the way that children are represented is professor of law at Warwick University Judith Masson.

Prof Masson says that well-meaning lawyers act in what they feel to be the child's best interest, but do not pay sufficient regard to the wishes of the children themselves.

'There are some brilliant people [representing children],' she says, 'but its easy to take on the role of representing the perceived best interests of the child, and not the child him or herself'.She illustrates her point with the example of a 14-year-old girl who came to her attention.

The girl was anxious to see her father whom she had not seen for some years, even though he had regularly sexually abused her in childhood.

Professor Masson says: 'Her lawyer dealt with her as an incompetent, and refused to put her wishes to the judge in a hearing.

If an adult says, "these are my instructions" .

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then the adult will be listened to'.

In this case, the potential repercussions of the legal representative's concern for the girl's welfare could have been that she would have sought contact with him that was clandestine, unsupervised, 'and much more dangerous than what could have resulted if it had all happened within the system,' says Prof Masson.Prof Masson adds that one of the most important skills that lawyers representing children need to develop is communication.

'They need to build up their confidence in communicating with children and in thinking of ways of communicating.'Prof Masson says there is a need for increased access to legal advice for children.

Children's often restricted movement makes the telephone the obvious link with legal advice, although the Internet might provide another means of seeking advice.Similarly, Prof Masson says schools would benefit from legal roadshows, showing children and young people how the law can be used by them, in their own interests.CLARE ROUTLEDGE ASKS WHETHER CURRENT COURT PRACTICE SUBJUGATES THE CHILD'S RIGHTS TO THOSE OF THE DEFENDANTThe defendant is innocent until proven guilty.

But what about the child victim? Both the accused and the victim have the same human rights.

Should the rights of a child victim be sacrificed to the rights of a defendant?In July 1994 at Newcastle Crown Court, the prosecution case against two local authority employed nursery nurses collapsed when Mr Justice Holland ruled that the male defendant would suffer overwhelming prejudice unless he was able to ask questions about:-- why the child had not made a contemporaneous complaint?-- why, in the case of a child making two, or even three video recordings, the allegations were not raised at the time of the first interview?-- why, when the allegation of rape was not raised until the third interview, even then, it was only after an interruption to the interview at the request of the child?Mr Justice Holland went on to say that unless the child, aged four, could give an intelligible account of material events, she could hardly provide information concerning the facts at issue or have her accuracy tested? He cited the length of the video recordings -- three interviews lasting in total three and a half hours -- and marked variations in her story as 'an inability to give an intelligible account of events, certainly of those events that are relevant to these proceedings'.

He said this incapacity was merely a reflection of her age; of the subject matter -- the defendants were charged with offences of rape and indecently assaulting her; of its emotional impact on her; and above all, of the delay between the events under investigation and the interview itself.

In the judgment of Mr Justice Holland, recording was not admissible, nor was it in the interests of justice that it should be admitted.

Moreover, he was of the view that the child was not available for cross-examination for the reasons given above.

Following the ruling, the Crown offered no additional evidence and not-guilty verdicts were entered on all charges.The judgment has had a devastating effect on the willingness of the police and the Crown Prosecution Service to prosecute those who are alleged to have committed sexual offences against pre-school-age children.By the time this case came to trial, the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings (HMSO 1992), prescribing the way child witnesses should be interviewed where it is intended that the result should be acceptable in criminal proceedings, had been in operation for two years.

The independent inquiry into events at the nursery concluded that 'many children, some less than two years of age, were abused both in and outside the nursery'.

('Abuse in Early Years': City of Newcastle upon Tyne 1998).

Did anything go wrong? On the face of it, the ruling seems sensible.

Young children have a poor recollection of events, are unable to recall them in a clear and concise manner, are easily manipulated, are open to coaching, and have a poor understanding of time.

Can a child of pre-school age be a reliable witness? This attitude reflects the failure of the legal system to consider the wealth of research, both here and in the US, that indicates that 'general characteristics of memory of children aged three to five' can be identified.

Professor Graham Davies, from the department of psychology at Leice ster University made these comments as an appendage to 'Abuse in Early Years'.-- 'Children of this age are capable of observing events accurately and reporting them competently at a later time.-- Children's statements will be limited and brief compared to those of older peers, but are generally accurate.-- Statements concerning events which are repeated over time are likely to be more accurate than one-off events -- the gist of such events is likely to be well recalled, including the temporal sequence.-- Children will show better recall for actions than descriptions of persons, central features of events rather than peripheral features.-- Events involving familiar contexts and routines are likely to be better recalled than novel events in unfamiliar environments.-- Lapse of time is not well represented -- children of this age typically have difficulties in estimating how long ago an event took place or its actual duration.'And in considering this, think about the actual events the child victim of sexual abuse is trying to describe.

Unless the child comes from the most unusual household, he or she will have no experience of the sexual desires of adults, nor of the sexual activities that adults indulge in.

How will the child find the vocabulary to describe activities beyond his or her experience?The existing legislation was not designed for pre-school-age children.

Section 32A of the Criminal Justice Act 1988 provides that a video recording of a child witness may with leave of the court be given in evidence as if it were direct oral testimony, but leave will not be given if:-- the child witness is not available for cross-examination;-- the rules requiring disclosure have not been complied with, or;-- the court is of the opinion that in the interests of justice the recording ought not to be admitted.If the recording is admitted, the current situation is that the child will sit in a strange room, in a strange building in front of a video monitor facing cross-examination by the defence team.

That cross-examination is designed to challenge and undermine the child's account of events.While the memorandum of good practice may have resulted in well-trained interviewers conducting the interviews so that the evidence is ruled admissible, there has been no similar training offered to barristers or solicitors.

The ability of many lawyers to abandon their confrontational cross-examination techniques to meet the needs of the child witness is non-existent.

The child is expected to withstand a judicial process which is recognised as gruelling for adult victims.To address the issues raised by Mr Justice Holland and to provide equal access to justice for the victim and accused alike, it is essential that the Pigot proposals in the Report of Home Office Advisory Group on Video Evidence are implemented in full and the legislation be amended to provide that:-- the child should be interviewed as soon as possible after the allegation is raised;-- the case should be managed by a judge who will decide what steps need to be taken, and the timetable;-- the defence should have the opportunity to put their questions before the trial and as soon as possible after the initial interview to avoid the need for traditional cross-examination;-- where the child is traumatised, or very young, the questions should be put by a single neutral interviewer.The existing system offers protection to the accused, but fails to offer the same protection to the most vulnerable in our society -- the children.