Appendix 16 - Provision of Therapy for Children Involved in Court Proceedings |
Criminal Proceedings
A child witness may be judged by the investigating team, and/or by those professionals responsible for the welfare of the child, to require therapeutic help prior to giving evidence in criminal proceedings. It is vital that professionals undertaking therapy with prospective child witnesses prior to a criminal trial adhere to the official guidance: Provision of Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance. The CPS and the Department of Health with the Home Office, 2001.
The CPS and those involved in the prosecution of an alleged abuser have no authority to prevent a child from receiving therapy. However the police and CPS must be made aware that therapy is proposed, is being undertaken, or has been undertaken so that consideration can be given to whether or not the provision of such therapy is likely to impact on the criminal case. At all times the importance of not coaching the child or rehearsing the child in matters of direct evidential value must be borne in mind by the professional undertaking therapeutic work with the child.
Three broad categories of therapeutic work are undertaken prior to a criminal trial:
- Preparation
- Counselling
- Psychotherapy
Preparation
Prior to the criminal trial work may be undertaken to prepare a child for the trial. The purpose of this work is to:
- provide the child with information about the legal process;
- address any particular concerns or fears which the child may have in relation to giving evidence;
- reduce anxiety.
The timing of the preparation for court is important. If it is carried out too soon before evidence is given, the child's anxieties may be increased. On the other hand, if it is carried out at the last minute the child may feel rushed and be unable to assimilate the information given.
Preparation must be undertaken by suitably trained individuals, who will need to be aware of the clear distinction between the preparation of a child for the experience of giving evidence in court and the provision of therapy or counselling to address trauma.
Where such preparation takes place, the witness should not discuss or be encouraged to discuss the evidence which s/he is to give in the criminal proceedings but may receive general support to help them through the process of appearing in court.
Special Measures are available through the Youth Justice and Criminal Evidence Act 1999 to enable children to give evidence in the best way, and with the minimum of attendant stress and trauma e.g. they may have a video-recorded interview admitted as their evidence in chief and be cross-examined via a live TV link.
Counselling/Therapy
The provision of counselling or therapy before a criminal trial will require adherence to the following guidelines:
- Records of counselling/therapy (which include videos and tapes as well as notes) and other contacts with the witness must be maintained so that they can be produced if required by the court. They should include details of those persons present and the content and length of the counselling/ therapy sessions. All material that may be relevant to the issues disputed in the criminal case must be preserved to comply with the rules of disclosure
- Where a counsellor/therapist receives a request for information or documents, legal advice should be obtained before complying with the request. Because of the recognition that maintaining a child's trust is central to the provision of therapy, it will usually only be appropriate to breach confidentiality in compliance with a court order. Those aspects of the therapy that have no material relevance to criminal proceedings should not have to be disclosed. However, the issue of relevance may need to be reviewed at different stages of the criminal case, as more becomes known about the prosecution and defence cases.
- Confidentiality cannot be guaranteed in advance. It is important that an understanding is reached with the child and carers at the outset of counselling/therapy of the circumstances under which material obtained during treatment may be required to be disclosed.
In deciding about the provision of counselling/therapy before a criminal trial the best interests of the child are the paramount consideration.
The Crown Prosecution Service will advise, as requested, on the likely effect of a particular type of counselling/therapy on the evidence of witnesses in individual cases and will need to be informed about any planned or ongoing therapy. Where a criminal case is at an advanced stage, it may be possible to consult the judge in chambers as to the potential consequences of a proposed course of action.
If there is a demonstrable need for the provision of therapy and it is possible that the counselling/therapy will prejudice the criminal proceedings, consideration may need to be given to abandoning those proceedings in the interests of the child's wellbeing. In order that such consideration can be given, it is essential that information regarding therapy is communicated to the prosecutor.
Care proceedings
If the counselling/therapy is to be used for assessment purposes:-
- The permission of the Court must be obtained before it can start
- A report will have to be submitted to the Court by the counsellor/therapist,
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