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Hearing by court

  • Legislation should provide that a parent, parents or guardian may request a hearing on the emergency order for protection to determine whether the child shall continue to reside at a shelter, refuge, or foster home. 
  • Legislation should provide that the hearing shall occur within 3 days of the removal of a child to a shelter, refuge, or foster home.
  • Legislation should provide that hearings by the court on an emergency order for protection shall be without a jury and may be conducted in an informal manner. In all court proceedings involving a child alleged to be in need of protection, the court shall admit only evidence that would be admissible in a civil trial.
  • Legislation should provide that allegations of a petition alleging a child to be in need of protection must be proved at trial by clear and convincing evidence.

Tool:

Amnesty International, Six-point Checklist on Justice for Violence Against Women (2010). The checklist is organized by steps that victims must take in order to report a crime and seek redress through the criminal justice system. It also identifies laws, policies and practices which still need to be reformed and other obstacles to the successful implementation of the legal framework. Available in Arabic, English, French, Mandarin and Spanish.

Right to Participate in Proceedings

Legislation should provide that a child who is the subject of an emergency order for protection hearing, and the parents, guardian, or legal custodian of the child, have the right to participate in all proceedings on an emergency order for protection hearing.

Testimony of Child

  • Legislation should provide that in the hearing for the order for protection, the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so.
  • Legislation should provide that informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom.
  • Legislation should provide that the court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed.
  • Legislation should provide that the court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned.

Tool:

UNICEF/Asociación por los Derechos Civiles, Guia de buenos practices para el abordaje judicial de niños, niñas, adolescents victimas o testigos de violencia, abuso sexual y otros delitos (2010). This guide is for judicial personnel and other professionals working with child and adolescent victims and witnesses of violence in justice processes. The guide comprises three sections that cover guiding principles and international standards for working with child and adolescent victims and witnesses; guidance for interviews with children and adolescents, including the rationale, objectives and components of interviews, training and monitoring and infrastructure needed; and specific steps for each phase of the investigation process. Available in Spanish.

CASE STUDY:  United States, Minnesota

 The Child Protection Statutes for the State of Minnesota in the United States provide protective provisions regarding the examination and testimony of a child within the child protection services.     

2009 Minnesota Statutes, Child Protection, Minn. Stat. 260C.163 – Hearing:

Subd. 6. Examination of child.

In any child in need of protection or services proceeding, neglected and in foster care, or termination of parental rights proceeding the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so. Informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom. The court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed. The court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned in accordance with subdivision 7.

Subd. 7. Waiving presence of child, parent.

The court may waive the presence of the minor in court at any stage of the proceedings when it is in the best interests of the minor to do so. In any proceeding, the court may temporarily excuse the presence of the parent or guardian of a minor from the hearing when it is in the best interests of the minor to do so. The attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian.

Termination of Parental Rights

If, after a hearing, the court finds by clear and convincing evidence that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent intent and desire to inflict female genital mutilation on a child, it may terminate parental rights. Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceeding concerning the child.

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