The Ability to Communicate With, and to Facilitate the Communication of, Children with Mental Disabilities
Communication is the Bedrock
As noted by the Judicial College for England and Wales (2012) ‘Effective communication is the bedrock of the legal process. It is vital that justice is both done and seen to be done.’ Without steps to remove barriers to effective communication with and by children with mental disabilities, equal access to justice will not be achieved.
General Good Practice
Specific accommodations and support may be required in order to ensure that professionals are able to communicate with and facilitate the communication of some children with mental disabilities. However there are also some basic rules of communication that can make the justice system more accessible. Although concerning adult defendants with learning disabilities or mental health problems during Court hearings, the following guidance by the Rethink and the Prison Reform Trust (2013) Mental health and learning disabilities in the criminal courts Information for magistrates, district judges and court staff, Polly McConnell and Jenny Talbot, Rethink & Prison Reform Trust offers helpful tips of equal relevance to communicating with children across the justice system:
‘Supporting communication and comprehension in court’
- Use the defendants name and ensure you have their attention before beginning to speak to him or her
- Explain in simple language and in short sentences what is going to happen at each stage of Court proceedings
- As a general rule give one piece of information per sentence
- Don’t ask ‘do you understand?’ As ‘yes’ response does not necessarily mean the individual does understand. Instead ask the defendant to tell you what they have understood
- Avoid using jargon and technical or legal terminology. If such language cannot be avoided, explain what it means and check understanding
- Allow extra thinking time so that the defendant can process information and consider the response before replying
- Offer support with reading and understanding documents in court. Being able to read a document doesn’t mean the defendant understanding the content. This may still need explaining.
- If the defendant is unable to write very well, he or she may need help taking a note of proceedings. For example, a defendant might be able to follow proceedings or take notes but not do both at the same time
- Allow a defendant to sit next to their advocate, carers or a family member. This can help reduce the stress of appearing in court and enhance defendant’s participation in proceedings.
- Ensure court documents are accessible for example written in ‘Easy Read’
- Ensure the defendant can hear proceedings clearly.
- Defendant’s with communication and comprehension difficulties might tire more easily and need extra breaks.’
General Methods to Remove Barriers to Communication for Children with Mental Disabilities
With regard to children with mental disabilities, Mary Dickins highlights that children with complex and multiple difficulties can participate effectively so long as practitioners establish the right way of listening for the individual child. Important skills to develop therefore include accepting that there will be moments of silence; when the child has finished talking, sum up what he or she has said and reflect it back; don’t feel that you have to have an answer or a solution for everything; and acknowledge the feelings that are being expressed and give them validity. The Children’s Society in conjunction with Birmingham City Council and Disability Inclusion Community Education (DICE) have also produced a Toolkit that identifies skills that need developing by professionals to assist them in enabling participation and engagement with disabled children and young people. A UK wide longitudinal study, the Choice and Change project, emphasised that a range of preferred communication modes, including verbalising, eye-pointing, signing, and moving an arm/hand or facial expressions can be used to facilitate communication. The study adopted a series of Talking Mats™ based on the Boardmaker™ symbol system, which can be used in conjunction with other communication systems as they aid rather than dictate a participant’s communication preferences. See examples of Talking Mats™ below:
Communication in the Context of Police Investigations
With respect to investigations, the police should be aware of different communication difficulties that might arise in connection with children who have intellectual and cognitive impairments. For example the police must be careful what language they adopt when interviewing accused children with mental disabilities to ensure that they fully understand their rights and the nature of the charge against them. Association “Puls” an NGO in Pernik, Bulgaria has provided skills training in order to assist the police officers in the identification of cases of violence in children and ability to distinguish between victims and offenders. http://pulsfoundation.org/en/training/
In the Czech Republic police officers receive compulsory training, which is contained in a workbook on how to inform a child of his/her rights and how to adapt an interview according to the age of the child. In Hungary the Ministry of Public Administration, in co-operation with the Hungarian Association for Persons with Intellectual Disabilities, launched an awareness-raising training programme for police officers, the aim of which was to: http://www.efoesz.hu/index.php?m=text&id=137
- broaden police officers’ knowledge of how to communicate with people with intellectual disabilities;
- outline the police’s responsibility in relation to the interactions with people with mental disabilities during proceedings; and
- improve police officers knowledge of equal rights, whether the person concerned is a victim or offender with a disability or a child victim or offender with a disability
The police must also assist vulnerable victims throughout criminal proceedings, giving due consideration to support needs and making sure that they are sufficiently protected from further abuse by the accused throughout proceedings. In Ireland there is a two year specialist training programme for Garda Síochána (police), where the police develop specialist interview techniques to adopt when working with child victims and victims with intellectual disabilities. The first year focuses on theory and the second year works on developing practical skills needed for interviewing children and people with intellectual disabilities through role playing as well as interviewing with volunteer interviewees with intellectual disability.
In some cases an intermediary may benefit both a child with a mental disability and the justice system in facilitating effective communication. In England and Wales an intermediary can be used if a witness finds it hard to understand questions from the police or lawyer or the police or lawyer find it hard to understand the witness’s answers. An intermediary is someone who can help a victim or witness to have their say and can help a person to understand questions that are being asked and to make sure that the answers given by the person are understood. They can help a witness to understand and answer questions asked by the police or lawyers in court, so for example an intermediary could assist a witness when he or she gives a statement to the police.
The physical location of an interview with a child also has an important bearing on its effectiveness. Some children may prefer a quiet space with comfortable and culturally appropriate seating. However, other children may prefer to go for a walk, or playing or working together may provide the best opportunity for communication.
In Bulgaria the ‘blue rooms’ model which is a special room that consists of two parts separated by a one-way mirror, where children are interviewed or give evidence separate from everyone else in the proceedings, so that the child can feel safe and less traumatised.
Communication in courts and tribunals
Some of the most critical skills required by legal professionals, including the judiciary, with regards to children and young people with mental disabilities are those necessary to address the issue of competence or capacity to instruct a legal representative; identifying whether the child can effectively participate in the proceedings; and the child’s ability to make informed decisions surrounding consent.
The primary obligation of legal professionals is to explore all possible ways to facilitate access to justice, identifying and building on children’s strengths rather than starting with perceived deficits. The Crown Prosecution Service for England and Wales has produced some helpful and important principles to these ends.
- People should not assume that someone with a mental health issue or learning disability cannot make decisions for themselves just because they have a particular medical condition.
- Secondly, people should be supported as much as possible to make their own decisions before anyone concludes that they cannot make their own decisions. This support may be through using different ways of communicating such as pictures or signs and providing information in different formats, such as tape or easy-to-read. In some cases an independent advocate familiar with supporting people with learning disabilities may be able to help.
- Prosecutors should be aware that whilst a witness with a learning psychosocial disability may not have capacity at a particular time, with the right support, capacity may be achieved.’
Training is provided in various countries regarding the participation of children – including children with mental disabilities – in Court proceedings. However, it is not clear whether such training is consistently rooted in a commitment to the rights of children with mental disabilities to equality of access to justice.
For example, in Lithuania there is a basic introductory course organised by an NGO Children Support Centre and a continued professional development programme approved by the ‘Judge Council’ of Lithuania for all judges covering:
- Psychological aspects of a child’s participation in legal proceedings.
- Various factors of an effective child interview.
- Child’s preparation for legal proceedings and interviews.
- Credibility of child interviews.
- Peculiarities of communicating with individuals who have different types of disabilities.
- Interviewing a minor who is a victim, witness or alleged offender during the pre-trial investigation.
In Bulgaria an NGO also delivers introductory education for judges regarding the participation of the child in judicial proceedings, including issues such as the psychological status of the child and trustworthiness of their testimony. Furthermore in Latvia there are training programmes for Judges, Prosecutors, and attorneys in the field of protection of the rights of the child that develop skills in communicating with a child witness, including factors that influence statements such as peculiarities of the perception, memory, reasoning, specificities of the language and speech; and tendencies to be influenced or fantasize. Similar courses are also offered by NGO’s in the UK.
As in relation to investigations by the police, intermediaries may be valuable where a witness finds it hard to understand questions from the lawyer or lawyers find it hard to understand the witness’s answers. An intermediary will not think up answers for a witness. In England and Wales the final decision about whether an intermediary can be used to help a witness to give evidence in court is made by the judge or magistrate. In the UK there is a registered intermediary scheme (for victims) and an unregistered scheme (for accused) to help facilitate communication during proceedings. Professionals such as the police, prosecutors, defence lawyers and the judiciary need to develop skills to help them identify when it is necessary to appoint an Intermediary. Communicourt Ltd, which is a leading provider of intermediary services in the UK, offers a wide range of training courses and seminars, particularly relevant for solicitors, barristers and judges, these include:
- Investigative interviewing including ABE
- Working with young and disabled children in the criminal justice system
- Working with adults with communication disorder or learning disability
- Using alternative communication methods – signing, symbols, communication boards
The Advocates Gateway a UK website, also provides free access to practical, evidence-based guidance on vulnerable witnesses and defendants.