Who is protecting the child?

• When the justice system becomes another trauma a child has to survive

I have spent years sitting across tables from children who have been abused.

I have watched children struggle to speak, children stare at the floor, children become angry, silent, withdrawn or strangely cheerful while describing something horrific. I have watched children tell one part of a story today and another part months later.

And then I have watched those same children enter our justice system.

This is where my frustration begins.

We speak constantly about the best interests of the child. We put it into laws, policies and speeches. We talk about child-friendly justice and trauma-informed practice.

But somewhere between the police station, the Magistrate's Court, the High Court, the lawyers, the investigation, the prosecution and the endless postponements, we seem to forget one very basic thing.

A child is actually a human being

A child who has already survived something most adults would struggle to survive is then expected to survive the justice system as well.

We need to understand trauma.

When a child is frightened, the response is not always rational or predictable. We speak about the Fight, Flight, Freeze and Fawn responses. A child may fight. A child may run. A child may freeze completely. A child may become excessively compliant because pleasing the person hurting them feels like the safest way to survive.

A child may say nothing. A child may protect the person who abused them. A child may continue to return to that person. A child may laugh while describing something horrific. A child may disclose something today and remember another part of the experience much later.

None of this automatically means the child is lying.

Sometimes it means the child is surviving.

Yet we still expect children to behave like perfectly coherent adult witnesses. We ask why they did not scream, why they did not run, why they waited, why they went back, why they changed their story.

Because they were children. Because they were frightened. Because their brains were trying to survive.

And then comes the courtroom.

The accused has a lawyer. The State has lawyers. There are investigators, prosecutors, rules of evidence and constitutional protections. As a lawyer, I believe absolutely in the right to a fair trial and the right of a defence counsel to challenge the prosecution case.

But there is a difference between rigorous advocacy and cruelty.

There is a difference between testing evidence and humiliating a child.

There is a difference between exposing a genuine inconsistency and repeatedly attacking a traumatised child until the child feels that they are the person on trial.

A defence lawyer may forget the child when the hearing ends. The child does not.

The child remembers the questions, the tone, the humiliation and the feeling of being disbelieved.

Then there is the investigation.

Some cases do not fail because there was no evidence. They fail because evidence was not secured when it mattered.

A child discloses abuse. There may be neighbours, teachers, friends, medical evidence, CCTV, telephone records, digital communications or other witnesses. But the investigation drags on.

Weeks become months. Months become years. Witnesses move. Memories fade. People become frightened. People change their stories.

And eventually we look at the child and ask:

Where is the corroboration?

My question is different. Where was the State when the evidence was still there?

Where was the urgency when the witness was willing to speak? Where was the investigator when the CCTV could still be secured? Where was the system when the digital evidence could still be preserved?

The failure to investigate properly cannot become the child's failure of credibility.

Then comes the media.

A child protection case breaks and suddenly everyone cares. Headlines everywhere. Television discussions. Social media outrage. People who have never met the child become experts on the child.

For two weeks, the child becomes the centre of national attention.

And then we move on. The news cycle moves on. The public moves on.

But the child does not.

The child still has to go to court. The child still has to live with what happened.

The Pallegama monk case is one example. The alleged abuse of a child by a prominent Buddhist monk generated enormous public and media attention. Eventually, as happens with so many cases, the headlines faded.

But what happened to the child when the cameras left?

That is the question we rarely ask.

We saw the same phenomenon in the horrific Mount Lavinia child exploitation case in 2021. A 15-year-old girl was exploited through an online network and the investigation expanded into a much larger group of alleged offenders. There were arrests, names and headlines. Police eventually reported 41 arrests in connection with the case.

The country was outraged. And then the country moved on.

But the child did not. Try to find out where she is right now.

We are also very good at announcing laws.

The Children's Ordinance dates back to 1939. Yes, it has been amended, including important amendments that came into operation in 2024. But we are still working within a legislative architecture whose foundations were laid almost a century ago.

Now we hear announcements about a new Child Rights Act.

Where is it? What does it contain? Who drafted it? Who were the stakeholders?

Were children consulted? Survivors? Child protection lawyers? Psychologists? Prosecutors? Investigators? Teachers?

And then there is the question that frightens me most.

What happens when a child is in danger today?

Imagine there is a custody battle before the District Court. One parent has physical custody. Something happens and the child is suddenly at risk.

The Magistrate's Court may be reluctant to interfere because the custody matter is before the District Court.

The Police cannot simply override a District Court order.

But… the District Court is on vacation.

So who protects the child?

This is not a theoretical question. These are the gaps we encounter in real cases.

Everyone can explain why they cannot act. But nobody can explain who will act.

A child does not understand jurisdiction. A child does not understand court vacations.

A child understands one thing:

"Am I safe?"

And if our justice system cannot answer that question when the child is actually in danger, what exactly are we protecting?

Children can also become victims of the justice system in custody battles. They become messengers, evidence, sometimes weapons. They are questioned about one parent by the other. They are taken to lawyers, psychologists, social workers, police stations and courts.

Sometimes we ask what the child wants when what the child really wants is simply for their parents to stop fighting.

We need a genuinely trauma-informed justice system. Not merely a colourful room called child-friendly. Not another policy document. Not another conference.

We need every person who encounters a child in the justice system to understand that silence can be trauma, inconsistency can be trauma, compliance can be survival, and that memory does not always behave like a CCTV recording.

And we need to stop treating every delay as a procedural inconvenience.

Every delay is part of a child's life

The eight-year-old becomes ten. The ten-year-old becomes fifteen. The fifteen-year-old becomes twenty.

The case remains "before court". But the child's childhood has moved on.

I am tired of hearing "best interests of the child" spoken as though it is a magic phrase.

I want to know what it actually means when a child needs protection today.

Who investigates? Who secures the evidence? Who protects the witnesses? Who supports the child? Who prevents further trauma? Who acts when one court says it is another court's problem?

And ultimately:

Who protects the child when the system itself cannot?

Because if the answer is come back when the court reopens, we have already failed. If the answer is the matter is before another court, we have failed again. If the answer is we are still investigating after years have passed, we have failed again.

We do not need another beautiful speech about child rights. We need a justice system that works when the child actually needs it.

Because a child should never have to survive the crime, and then survive us.

(The author is an Attorney-At-Law and Founder – Child Protection Force)