Andrew Becroft: If abused children can't speak, we need to

The Flaxmere house where a four-year-old boy was horrifically injured. Photo / Warren Buckland

COMMENT

Being a child should be a time of nurturing, growing, fun and learning. But for some children, their lives are forever changed at the hands of those entrusted to care for them.

Some children are abused and even killed by their caregivers before they have a chance to learn the words to describe what is happening to them. Others lie in hospital so badly injured or brain damaged they will never speak again.

When abused children cannot speak for themselves, this presents a particular challenge for investigators. These children simply cannot testify as to their own experience.

Usually a group of adults will know what happened, or they will have some very clear suspicions. Currently, they don't have to tell anyone – not even the police. They are entitled to remain silent.

But who speaks for the child? Where is their voice? In the case of serious child abuse, hospitals and doctors need the truth about what happened to provide the best treatment. Police also need the truth to ensure the best decisions are made for children, that abuse is uncovered and dealt with.

I think it is time for a courageous national discussion about whether our investigative and evidence gathering procedures in these cases are working.

Here is the question for debate. In cases of child abuse, should we require witnesses, or those who have important circumstantial evidence, to provide this to the police?

They may have evidence, for example, about when a person arrived at or left the home or how long they stayed which could be critical in getting to the truth.

My suggestion alters the right to silence but for witnesses only - not the right to silence for someone detained or arrested by police or an accused person during their subsequent trial. Nor does it affect the right we have not to be forced to testify against ourselves.

The good news is that we already have a blueprint to follow. The Serious Fraud Office Act contains this power of investigation. A witness can be required to attend an interview where failure to answer relevant questions is an offence, punishable by imprisonment for up to one year or a serious fine.

If it was good enough to amend the law for serious fraud, it is surely the right thing to do in cases of child abuse. If we prioritise money over the lives of our children, our priorities are mangled.

Sure, there are some fish hooks in all of this that we need to consider.

Some witnesses will be in their own difficult situations, with divided loyalties, or with fears for their own safety. Such a law could provide the "shield" they need to justify their cooperation. But for those who remain silent through genuine fear for their own safety, the law could easily provide for this reasonable excuse.

Andrew Becroft. Photo / supplied

What if the "witness" turns out to be the culprit? This is already addressed in the Serious Fraud legislation where incriminating admissions cannot generally be used in court. It provides a good incentive for the police to restrict the use of this power to true witnesses, not suspects.

Also, the marginalised and poor, where statistically the risk of abuse is highest, might be disproportionately affected. I get that. The police could use this as an opportunity to build more trust and confidence in them.

The accumulation of stress experienced by disadvantaged families can be toxic. It may help to explain some cases of child abuse. But it can never excuse it.

Our rates of child abuse remain stubbornly high despite a multitude of task forces, inquests and reviews over the decades.

We need to change what we are doing. We need a community-wide consensus that in
cases of child abuse we all have the obligation to give our voice to those who cannot speak for themselves.

It is often said if it takes a village to raise a child, it will also take a village to protect a child. Our children are taonga – treasures and gifts to be loved and nurtured. It's time for us all to speak up for them.

• Judge Andrew Becroft is the Children's Commissioner.