Hearing by court
- Legislation should provide that a parent or guardian may request a hearing on an emergency order for protection for his/her child 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.
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 the 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, including by taking the child's testimony outside the courtroom.
- Similar protections should be provided for minors testifying as victims in “honour” crimes prosecutions, including permitting testimony by closed-circuit television or other video display to prevent the minor from having to confront the defendant in person.
- Legislation should provide that the court may also require counsel for any party to an order for protection 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 when it is in the child's best interest to do so.
CASE STUDY: 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.
Data collection on emergency orders for protection
- Legislation should require data collection on specific aspects of the implementation of the new law relating to “honour” crimes, including the number of emergency orders for protection sought, granted, denied, cancelled, or appealed.
- Legislation should require that the data be able to be disaggregated by the type of order for protection sought so as to permit identification of an order for protection on the basis of “honour” crimes, as well as the general identity of the petitioner (e.g., the individual at risk, family member, or other aware individual).
- Legislation should require that this data be kept and made publicly available.
- Legislation should require qualitative data about the effectiveness of orders for protection to be gathered on a regular basis from police, courts, child protection agencies, counseling centers, shelters, schools, and survivors.
- Legislation should require that this data be compiled by the relevant government ministry and be published on an annual basis.
(For more details on order for protection remedies, see: Section on Domestic Violence, subsection on Civil Remedies for Domestic Violence – Order for Protection Remedies)