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A child abuse case in the criminal justice system collapsed last after the younger of the two children broke down during cross-examination, and the judge halted the trial out of consideration for the child. The boy had been on the witness stand for one day and his sister had been giving evidence for six days.

The mother of the two children is to sue the Scottish executive under the European Convention of Human Rights 1980 claiming that the way in which her children were cross-examined was "inhumane and degrading" violating their human rights under Article 3.

The mother claimed that her 11-year-old daughter was subjected to 25 hours of questioning ,and that the children were treated like criminals and badgered with the most obscene questions. When the case ended, there were calls for an overhaul of how Scottish courts deal with child witnesses. The mother is hoping that by bringing the challenge it will lead to a change in the law so that other children do not suffer the same ordeal.

Earlier on this week a juror in the case waived his right to anonymity to speak out about the children's treatment in court and how horrified he was with the way they were questioned. Scotland's legal system was accused of failing victims of child sexual abuse after it emerged new measures to protect them in the courts have not been implemented - two years after they were agreed.

Joyce Plotnikokk, a legal researcher, was commissioned by the then Lord Advocate, Lord Rodger, in 1995 to carry out a study on how to bring about changes in the way child witnesses were dealt with. Her report, which took four years to complete and made 44 recommendations for change, was presented to Colin Boyd, the Lord Advocate, in 1999.

In November last year, a crown official said all but one of the new measures had been accepted, but no timetable for reform was put in place. Plans included a detailed good practice guide for judges on managing child witness cases. Scotland and England do not have the same legal system, but encounter similar problems with criminal cases where children are required to give evidence.

In 1989 there was the report of the advisory group on video recorded evidence chaired by His Honour Judge Pigot, which recommended that children should give evidence on video, that the tape should be the sole source of the child's story (with no right to cross-examine), and that specially trained staff should interview the children to ensure fairness to both victims and defendants. The proposals were amended so that the children should be available for cross-examination.

It may well be time for the matter to be reconsidered in all parts of the UK. In human rights caselaw, there is the 1985 case of X and Y -v- Netherlands which states clearly that a state must provide and use means to ensure that vulnerable members of society (which must include children) are protected from harm via the criminal law.

Victims can use the Human Rights Act to ensure that the executive acts in a way which is compatible with their rights. It may be that to comply, parliament may have to change the law (in all UK jurisdictions).

Bernadette Livesey

Human Rights Solicitor

Walker Morris