Child's Right To Be Heard In Criminal Cases- An Inductive Study In Anglo-American Laws

In this research, we try to prove that child has a right to testify, especially because a lot of laws (like Arab laws), still don’t recognize in it, taking in consideration that most of these laws ratified by Convention on the Rights of the Child, which admitted in child's right to testify. To prove the existence of this right, we will prove first that there are corroborations for child's right to testify, and there are legal measures established to protect it.
In this study we come up with a set of results, among that: child's right to testify is connected with their efficiency for testimony, which varies depending on age or stages of development they are going through, and they differ from one child to another depending on that. Besides, child's right to actively participate in judicial proceedings does not mean just hearing the child in principle, but also the extent to which the child's views are taken into account and given appropriate weight, and also means, in essence, not to allow the judiciary without enabling child to participate effectively in judicial procedures.
Also, we concluded that there must be an objective link in our opinion between the reliability of the oath and the responsibility of the one who performs it for perjury, which determines child's ability to consent if he is "able to appreciate the nature, extent, and potential consequences of the behavior on his consent”. Also, besides of the personal corroborations for the child's right to testify, which is derived from the characteristics of his personality, we find that there are other objective corroborations, not related to his personality, but to his rights themselves. This includes his right to equality and the necessity that ensues of prohibition of any arbitrary restrictions that could be imposed on his right and finally the realistic necessity related to establishing crimes and reaching the truth, which imposes the necessity to grant him this right.
Besides, it is not sufficient to determine child's right to testify merely to report theoretical support for him. Rather, child must be given realistic mechanisms that enable him to use this right. This necessitates the imposition of a set of practical measures for this. Also, there is a legal distinction between competency of the witness and his credibility, and child's right to testify related to his competency to testify, but not necessary to be related to credibility of his testimony. Also, we concluded that to enable the child to exercise his right to testify, it was necessary to reduce restrictions imposed by laws and judicial precedents on the exercise of this right, under the pretext of verifying his competency to testify, by transferring the burden to prove it from the party asking for child’s testimony to the party opposing it or even completely abandonment of the efficiency requirement to hear child’s testimony.
Also, we concluded that child's right to testify requires imposing necessary amendments for these rules, that including a balance between the interests of the child on the one hand and the rights of defense on the other hand, in the sense of balancing between the protection of vulnerable actors in criminal proceedings (such as children) and the principles of fair trial (from which the accused of assaulting them benefit), by providing a new dynamic for the legal status of child victims and witnesses in the context of criminal justice. Two applications can be shown for this, namely, hearsay and videotaping statutes of children and the effective judicial administration of the interrogation process.
Finally, child's right to express his or her point of view is not intended by the traditional way of speaking, but rather child has the right to express his point of view in other ways such as crying, gestures, and other reactions act of physical, which the child look at as a means of meaningful communication. All these rules are founded on the essential problem on the subject of children's testimony, that the procedural criminal justice system designed originally for adults not for children, what makes any try to suit it very difficult, particularly in terms of the elimination of tension in the control of the child when taking his testimony, when facing the official atmosphere of the court.