A common feature in Nordic child law is the growing emphasis on children as holders of individual rights. The formation, ratification, transformation and in some cases incorporation of the CRC is one explanation and has contributed to a new way of looking at children. One element of children’s rights highlighted in
international law is the right of
access to justice. This can be seen as an outflow of art. 12, the right to participation (CRC/GC/12, Council of Europe 2010), but also as a fundamental right that follows from being a right holder when fundamental rights have been violated (CRC/GC/12 and CRC/GC/2). According to the CRC, a fundamental right of any child is protection from sexual, physical and psychological abuse (e.g. art. 6, 19 and 34), which makes access to justice in cases of abuse crucial from a child rights perspective.
An important question is to what extent the Barnahus model helps to realise children’s rights. As discussed by Friðriksdóttir and Haugen (Chap. 9), the aim of Barnahus is safeguarding several aspects of children’s rights, and this is a challenging task. This is illustrated in the chapter written by Kaldal et al. (Chap. 10), which discusses the child’s right to information
in Barnahus in the light of the CRC art. 12 on the child’s right to participation. According to the CRC, participation is a right, not a duty, and therefore, the child has a right to information in order to make an informed decision according to the best interests of the child.
In the Nordic countries, children’s right
to access to justice has been considered in legislative work for the past decades. The discussion has, for example, led to legislation where children, through independent
representation, have been given rights to act autonomously in relation to a custodian in legal proceedings. This legislation can be found in areas where there is a potential conflict of interest between the child and the custodian, such as in child welfare cases and criminal cases
with suspected abuse from a family member. See, for example, the chapter in this book written by Forsman, where she discusses the special representative for children in criminal cases and the special representative’s role in Barnahus (Chap. 11). An emphasis on children’s rights to access to justice, however, also requires a justice system that is child friendly (cf. Council of Europe 2010). Consequently, a child’s involvement in legal proceedings must be adapted to the needs of the child. This is also the core of the Barnahus ideology. What makes a Barnahus child friendly is not a simple question, however, and can be approached in different ways. One aim of the Barnahus model is to provide a child-friendly environment
. What child-friendliness means in this context is discussed in the chapter written by Stefansen (Chap. 2). Research
into children’s own experiences and perspectives from visiting Barnahus is limited, but the chapter written by Olsson and Kläfverud presents a study of children’s own experiences of visiting Barnahus (Chap. 3). Both chapters highlight child-friendliness as a multidimensional phenomenon that is far from easy to achieve in practice.
A core aspect of children’s rights to access to justice
is the child investigative interview. As pointed out in Baugerud and Johnson’s chapter (Chap. 6), the main evidence in the vast majority of criminal cases
in Barnahus is the child’s statement. As described by Myklebust (Chap. 5), a child’s statement in a criminal proceeding is handled in a similar way in the Nordic countries, by using a video-recording of their statement from the criminal (pre-trial) investigation as evidence in the main hearing. The child witness, therefore, is normally not present in the court. This especially applies to particularly young or vulnerable children (e.g. preschool-aged children, or children with developmental difficulties or communicational problems). Traditionally, statements
from children in abuse cases have also raised issues about children’s credibility and suggestibility (see, for example, Doris 1991; Hershkowitz et al. 2007; Chap. 7 by Korkman et al.; Chap. 6 by Baugerud and Johnson). The consequence of this is that the demands on the quality of the
child statement are high, and therefore so is the quality of the interview method, as well as the requirements of safeguarding the defendant’s right to a fair trial
. The context in which the child is interviewed, as well as the interview method as such, has been in focus for many years in the Nordic countries, among researchers, police and prosecutors, as well as courts. In Sweden, for instance, the Supreme Court has commented several rulings on aspects of the child investigative interview, such as the questions asked, the defendant’s right to
cross-examination and the quality of the documentation (Sutorius and Kaldal 2003).
The tension between children’s capacity as witnesses and their right to a child-friendly approach on the one hand, and on the other hand safeguarding the rights
of the defendant, is one of the dilemmas when it comes to the child’s right of access to justice. As discussed above, this has led to the development and implementation of a specific method for
child investigative interviews.
The methods used in the Nordic countries are, as noted by several authors in this book, interview protocols that resemble the NICHD protocol (described in, for example, Chap. 6 by Baugerud and Johnson). Whether results are better in terms of following the principles of the protocol, when used in the Barnahus setting
, is not clear however and needs to be further studied empirically. The Barnahus has, however, as described by Langballe and Davik (Chap. 8), and referring to the Norwegian context, been a driving force in the development of new interview procedures for groups that are difficult to interview using the standard protocol, such as very young children. As described by Myklebust (Chap. 5), the implementation of specific interview methods has led to high demands on the competence of the interviewer and the development of specific educational programmes designed for child investigative interviewers.