Today, Criminal Litigation lawyer Aaron Kernaghan refused to present his client before the Port Kembla Children’s Court to have his matter heard.

Mr Kernaghan said at court,

“I’m aware that other practitioners and courts occasionally have different views about this but it is a principle of law that I consider sacrosanct and which I am not prepared to remove from. If my client is to appear in a court room, he does so without wearing handcuffs or being in chains, particularly so where my client is a young child.”

Mr Kernaghan was representing a 12 year old boy who, due to his age, cannot be named. The boy was due to appear before the Port Kembla Children’s Court in relation to ongoing criminal law matters but when his lawyer spoke with him via video-link from a Juvenile Detention Centre in New South Wales, he discovered that his client was handcuffed. When Mr Kernaghan was asked for an explanation as to why a child was handcuffed while sitting inside a prison for children, he was informed by staff at the centre that it was due to an internal decision that could only be reviewed by someone else.

Mr Kernaghan told the court that no client, least of all a child, should have to appear before a court under physical duress of any form. He said that save in the most exceptional circumstances and only where an application had been made for a special arrangement should a defendant be shackled and that it would be hard to imagine when it would ever be acceptable for a child to be so chained.

Children’s Court Magistrate Blewitt agreed that it was inappropriate and indicated that though it was unfortunate to do so, he was prepared to proceed to deal with the matter in the absence of the child so that his interests could at least be partly addressed by moving the matter forward. He indicated he would be taking the issue of the handcuffs up with the Registrar of the Court and the President of the Children’s Court of New South Wales.

Outside the Court, Mr Kernaghan said,

“We speak frequently of child refugees coming to this country and being treated horribly. We should pause to consider the outrage that is an instance where a young child, indeed, a young indigenous child is handcuffed and thereby humiliated and subjugated while sitting patiently in an audio-visual room waiting to have his case heard in some distant court room that he can only see via a TV link. How can a child be expected to think that what he is experiencing in those circumstances is the fair, objective and free judgement of a court that treats him like any other citizen? The short answer is that treating children like that and presenting them to court in that manner is nothing short of disrespectful of a child’s rights and what the court stands for. It suggests a high-handedness in the correctional-mentality of this state.”

The issue raises serious concerns about children appearing before the courts under physical duress, said Mr Kernaghan. To that he added:

“There must be an urgent review at the highest levels of how this has happened and whether it is an isolated incident. I have written to the Attorney General of NSW, asking that he consider appointing  an independent judicial officer to review the matter and report back to the public so that the most vulnerable among us may be protected from further indignities.”