Right to remain silent

From January 2022 to January 2026, Peggy ter Vrugt is studying the right to silence of young suspects in Dutch law and practice.

Ethics in children’s rights research: Balancing the risk of distress against the right to be heard

30 May 2023 - By Peggy ter Vrugt

In children’s rights research, the aim is always to further the protection of children’s rights and prevent them being violated. To do this research well, we need to know why certain children’s rights are being violated and to obtain information about this, ideally from children themselves. But sometimes speaking about violations may be harmful to children. On the other hand, not being asked may also harm children. In this blog, I discuss how I dealt with this dilemma in my research on the right to silence of young suspects in Dutch law and practice.

The dilemma: to be heard or to be harmed?

Children are the experts on their own lives and in the best position to provide information about their own situation. Moreover, Article 12 of the UN Convention on the Rights of the Child (CRC) recognises the right of the child to participate in matters affecting him or her:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

In essence, this Article means that children have the right to be heard, to voice their opinions and for their views to influence matters that concern them or other children – this includes research relating to children’s rights. However, children who participate in research may be at more risk of experiencing ‘distress’.

In recent months, as I prepare to apply for ethical approval to interview young suspects about their right to remain silent for my PhD, I have been considering how to navigate this quandary. How do I ensure that children’s voices are heard in my research while also ensuring they are protected from potential harms such as distress? Should children at higher risk of experiencing distress be excluded from being research participants? In this blogpost, I share my work to develop a child-centred protocol for researchers conducting interviews with children to manage and minimise the risk of distress. I then discuss why I believe all children should have the opportunity to participate in research.

Children's rights researchers have to navigate the ethical dilemma of how to give children a voice, but still protect them from research-related harms.

What guidance is there for research involving children?

A starting point for all children’s rights researchers who want to conduct ethical research with child participants is the UN Committee on the Rights of the Child (UNCRC), which provides a ‘checklist’ of considerations for all processes (including research) involving children. Namely these are that participation of children should be:

(a) Transparent and informative
(b) Voluntary
(c) Respectful
(d) Relevant
(e) Child-friendly
(f) Inclusive
(g) Supported by training
(h) Safe and sensitive to risk
(i) Accountable

For my PhD research a particular concern was ensuring that my research was ‘safe and sensitive’ to the risk of distress for child interviewees. This is because children in the criminal justice system have typically been considered to be in such gravely ‘vulnerable’ situation and therefore at such high-risk of ‘distress’ that they should not be included in research as participants. Therefore, it is important for my research to have an ethical framework in place to ensure that children in this vulnerable situation can take part in my research. By developing such a framework, I believe I can minimise and manage the risk of distress so that these children can participate in research and their voices can be heard.

However, while the UNCRC provides researchers with useful guidance as to what ethical research with children should involve, it doesn’t explain how to do it. Although there are some guidelines (for instance on the ERIC website) about how children’s distress during research can be eliminated or minimised, there is no specific protocol as to what to do if a child does become distressed during data collection. As such, I had to develop one for my ethics application. To do this I drew on research looking at indications of distress (in both children and adults) and adapted existing distress protocols for researching sensitive topics with vulnerable participants (see for example here, here and here). Following other research on distress protocols, I divided it into three distinct stages: before the interview, during the interview and after the interview.

What is distress?

Distress is difficult to define. According to the dictionary it means ‘extreme anxiety, sorrow or pain’. Similar words include ‘upset’ and ‘suffering’. It can be emotional, psychological, or psychical. A person in distress may feel sad, afraid, depressed, angry, or lonely.

Because distress is experienced very differently by people, a researcher must consider a wide range of behaviours that may indicate a person is experiencing distress. Indicators of distress in children can be verbal or non-verbal.

During the interview, the child may show indicators of distress. These can be verbal or non-verbal, such as crying, be visibly upset, shifting in seat or looking away from the interviewer. Afterwards the child can also show indicators of distress, for example anxiety. To be prepared for this, it is important that the researcher can address (potential) distress among research participants and act to minimise it. This can be done by using a research distress protocol, which helps the researcher in responding to potential and actual participant distress at the different stages of the research.

Ethical interviewing: how to manage and minimise (risk of) distress in interviews with young people

Before the interview

1) The researcher should ensure that the child participants understand their right to pause the interview, stop the interview or withdraw from it. This information should be shared with the child in the written in the information letter and again orally before the interview in an age-appropriate language. The researcher must also check with the child whether they have understood it. This can be done, for example, by asking the child to explain it in his/her own words or by asking the child whether or not they have to answer a question even if they don’t want to.

2) The informed consent and information letter should also provide information to the child about how to contact a professional (e.g., a social worker or psychologist) to discuss their feeling and thoughts. This information will, of course, depend on the specifics of the situation (e.g., the age of the child and where they live). In the Netherlands it could, for example, be the number of the Kindertelefoon (National Child Phone).

During the interview

1) If researcher suspects that a child may be distressed during the interview, they should evaluate whether to continue, pause or stop the interview with the child. To do this, researchers should use a child-centred approach. This means empowering the child to decide if they want to continue or not and to determine the pace of the interview by consulting them. For example, the researcher should first raise the issue with the child by stating something like: “I see that you are crying or emotional”. They should then ask the child whether he or she would like to pause, stop, or continue the interview.

2) If the child does not want to stop or pause the interview can continue. However, at the end of the interview the researcher should still follow-up on the incident of distress that the child experienced and explicitly ask if they would like to be referred to a relevant, specialised service or professional for additional support. The researcher should ensure that appropriate referral resources are prepared and available.

3) If the child wants to pause the interview, the researcher should stop and ask whether the child prefers to stop the interview for today or just wants a short break before continuing. When the child feels ready to continue the interview, the interview can resume. However, at the completion of the interview the interviewer should still follow-up with the interviewee about the moment of distress and ensure they are offered access to additional support.

4) If child wants to stop the interview, the researcher should immediately do so. The researcher should then ensure that the child is offered access to additional support. In this situation, it is important to offer the child the option to reschedule the interview for another time.

After the interview

1) The researcher must always offer child participants the chance to debrief afterwards, regardless of whether the child is upset because of the interview. The researcher should offer the possibility for the child to debrief with a caretaker present (e.g., a primary caregiver or if the child is imprisoned a behaviourist/psychologist working at the prison).

2) At the end of the interview, the researcher must also supply telephone numbers of referral institutions to children in case they wish to speak to them later about their interviews. Here, the researcher can provide contact details of national services (such as the Kindertelefoon or the National Suicide Prevention Lifeline) and/or relevant local services, such as a psychologist. In the latter case, it is important that if the researcher helps to connect the child with the support service or professional that the researcher doesn’t disclose any information about the interview to them (because the child should have autonomy about what they do/don't disclose and how they do so).

Children in the criminal justice system are often considered to be at high-risk of distress and therefore too vulnerable to participate in research, but this approach means their voices are not heard.

Balancing risk of distress with the right of children to be heard

However, not including children who may be at high risk of experiencing distress in their research has several downsides. Firstly, by excluding this group, . Secondly, excluding ‘riskier’ groups from participating in research means that we end up not knowing if our research findings apply also to children who are more at risk. For example, if we study child abuse but do not include children who were abused, it is unlikely that our research findings will really help us to what issues they face and how we could better support them. Thirdly, excluding high-risk children from participating prevents these children from potentially benefiting from their participation. Aside from the academic value of children’s participation, a growing body of research shows that it can also empower them to have their stories and experiences listened to and to know they can help children in similar situations. Fourthly, excluding children from participating in research, especially on sensitive topics, because they are deemed (too) ‘vulnerable’ is unethical. Not least because it silences children’s voices, which goes against the purpose of Article 12 CRC. (You can read more about this last point in the blog of Harry Shier on this website)

Finally, there is the question of whether all risk can, and indeed should, be eliminated. As Mary Ann Powel and others. note: ‘Over recent decades, anxiety has increased around risks to children, who are perceived as a vulnerable social group in need of protection’. As Melanie Lang observes led to ‘a new age of insecurity characterized by risk consciousness and risk avoidance’.

This tendency to avoid risk by excluding children (particularly those at higher risk of distress) as research participants is worrying. Rather than automatically excluding children because of a risk distress, I argue it is better to develop a rigorous protocol to minimise and manage distress during research. By doing this it is possible to both fulfil children’s right to have their voices heard and to minimise and manage the risk of them experiencing distress.

Vulnerable but autonomous: the child’s right to remain silent in criminal proceedings

31 January 2023 - By Peggy ter Vrugt

Every year around 18,000 children aged 12 to 17 years old are formally interviewed by the police in the Netherlands. Of that number, around 5,800 cases are brought before a court. All these children (called young suspects in criminal law) must make an important decision: Do they remain silent or not? The right to silence is one of the most fundamental, yet controversial procedural rights in youth criminal law.

The legal right to silence

The right to silence is defined as ‘the right of suspects to refuse to answer questions before or during trial without sanction.’ This means that as a young person, when a police officer or a judge asks you anything, you don’t have to answer. This right stems from the presumption that every suspected person is considered innocent until proven guilty in court. In addition, the right to silence protects suspects from incriminating themselves and therefore helps to guarantee their right to a fair trial. The right to silence especially helps young suspects not to feel pressured to confess their guilt. It is also linked to their right to effectively participate and be heard in the criminal justice system. In the Netherlands, the right to silence is acknowledged in Article 29 paragraph 1 of the Dutch Code of Criminal Procedure and is applicable to both adult and young suspects. This recognises that youth suspects are autonomous rights-holders and that they can decide for themselves whether to confess, deny their guilt or invoke their right to remain silent.

The right to silence stems from the presumption that every suspected person is considered innocent until proven guilty in court.

Issues in practice

Although this right may seem easy enough – every suspect has the right to remain silent, so you don’t have to answer any questions – it is actually quite complex. One problem, that has been emerged in previous research, is that choosing to remain silent or not may have an influence on other important decisions that are made during criminal proceedings. For example, if someone doesn’t answer questions, a judge may give them a higher sentence than when they speak during trial. There are also several reasons why it can be more difficult to protect this right for young people than for adults. Young people may not understand what this right means. They may not know whether it’s important or not, or how to say that they don’t want to answer. For these reasons, young suspects may not stay silent during questioning, even if they would like to. Other research shows that due to their age and limited maturity, young suspects are more impulsive and experience difficulties in considering long-term consequences. In addition, children are more likely to be influenced by external pressure and power imbalances. This makes young suspects particularly vulnerable in situations where they are interviewed or questioned by the police, prosecutors, or the court. It places them at risk of making incriminating statements unintentionally or even giving false confessions. Because of these complications, it is unclear how effectively young suspects can exercise their right to silence in practice.

The issue of a young suspect’s right to silence is further complicated by the nature of the youth justice system itself. This is because the system is characterised by a dual approach. On the one hand, it is a criminal law system with legal guarantees and goals. On the other hand, it also aims to reform young suspects, and this aspect is given priority. This approach, which is different from adult criminal law, recognises that young suspects are in a vulnerable position in the criminal process and that they can be held less responsible for their criminal behaviour. It implies that young suspects should be treated in a manner that is appropriate for them considering their age, stage of development and specific needs. In light of this reformative aim of the youth justice system, it is highly valued when young suspects tell the truth about their involvement in the offence, take responsibility for their actions and show remorse. However, this seems to clash with the right to remain silent. This is because if a young suspect chooses to remain silent, they do not explain their involvement in the offence, take responsibility or show remorse, as is valued in the youth justice system.

Coming up next

From January 2022 to January 2026, I am studying the right to silence of young suspects in Dutch law and practice for my PhD at the department of Criminal Law and Criminology of the Maastricht University. My research investigates how the right to silence of young suspects is exercised and perceived throughout Dutch criminal proceedings. This research uses an international human rights framework and insights from criminology and developmental psychology to explore whether changes are needed in Dutch law, policy, or practice. Via this website I will keep you informed about my research process, the progress of my research and the results.

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