A Bermuda Triangle? Balancing protection, participation and proof in criminal proceedings affecting child victims and witnesses

Abstract

Since the adoption of the UN Convention of the Rights of the Child in 1989, the right to participation has been recognised internationally as one of the general principles of children's legal status. It adds a new dimension to the existing and already problematic balance between the protection of the child victim and witness on the one hand and the fairness of the criminal proceedings on the other. In this article, we focus on the position of the child victim and witness in criminal proceedings and the complexity of the different roles he or she plays in this specific legal context, especially in child abuse cases: the child victim and witness that needs to be protected, the child as a vital source of information to the judicial authorities and the child as a person under the age of eighteen who has the right to participate. After having explored the meaning of the right to participate and its consequences for the way criminal proceedings should be conducted, we will address the position of the child witness in Europe and the United States of America. The rules and regulations regarding child witnesses in these two regions are based on different premises as do their assumptions on how to acquire the most reliable testimony. This article aims to clarify these premises in order to define the biggest challenges regarding the implementation of the right to participation of child victims and witnesses in criminal proceedings.