Dr. Ashraf Samhan
Associate Professor of Criminal Law
College of Sharia and Law
Jouf University, KSA

Abstract:

In this research, we try to prove that the child has a right to be heard, especially because a lot of laws (like Arab laws), still do not recognize it, taking in consideration that most of these laws acknowledge by Convention the child’s right to be heard. To prove the existence of this right, we will attest first that there are corroborations for the child’s right to be heard, and there are legal measures established to protect this right.
The main objective of this article is to prove that a child has a right to be heard, and so it shows both the legal and material basis of this right, in addition to the legal measures established by law to enable a child to exercise his/her right to be heard. From this main objective, we -in this research- adopt an inductive method. The scope of this research is in the Anglo-American Laws.
To prove the right for children to be heard, we discuss first the corroborations for the child’s right to be heard, to move after that to discuss the legal measures established to protect this right.
At the end of this research, we come up with a set of results, among which the child’s right to actively participate in judicial proceedings which does not mean just hearing the child in principle, but also the extent to which the child’s views are considered and given appropriate weight.
Also, we find that there are other objective corroborations, not related only 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 him.
Besides that, we conclude that there is a legal distinction between competency of the witness and his credibility, and child’s right to be heard related to his competency to testify, but not necessarily to be related to the credibility of his testimony. We also concluded that child’s right to be heard requires imposing necessary amendments for these rules, 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 measure for the legal status of the child’s victims and witnesses in the context of criminal justice.
Finally, the child’s right to express his or her point of view is not intended by the traditional way of speaking, because traditional-related rules are founded on the essential problem of the subject of children’s testimony, that is the procedural criminal justice system designed originally for adults not for children, what makes any attempt 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 formal atmosphere of the court.

Keywords: Arab laws, Convention on the Rights of the Child, arbitrary restrictions, the interests of the child, and principles of fair trial.

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