Children and young people may be interviewed by police as suspects, witnesses, victims or people who may have information relevant to an investigation. Where a child is suspected of committing a criminal offence, particular safeguards may apply to police questioning, cautioning, parental involvement and the presence of an adult during the interview.
This article explains the key issues that arise when police want to interview a child in Victoria, including legal advice, the right to silence, the role of parents and guardians, and the involvement of an independent person or other support person.
Key Points
A child suspected of an offence generally has a right to silence, subject to any legal requirement to provide particular information.
A child should have an opportunity to obtain legal advice before deciding whether to participate in a police interview.
An adult will be present when a child under 18 is interviewed by police. This may be a parent, guardian or independent person.
A parent, guardian or support person is not a substitute for legal advice from a lawyer.
A child's age, maturity, understanding and vulnerability may be relevant to the circumstances in which an interview or admission was obtained.
Parents and guardians can support a child without pressuring them to answer questions or make admissions.
What happens during a police interview may have consequences for later criminal or Children's Court proceedings.
When Police May Seek to Interview a Child
Police may seek to speak with a child for a number of reasons. The child may be:
suspected of committing an offence;
a witness to an alleged offence;
a victim; or
someone who may have information relevant to an investigation.
The most significant legal consequences usually arise where the child is suspected of an offence. In these circumstances, the child's answers may later be relied upon as evidence, subject to the applicable rules concerning admissibility and the circumstances in which the evidence was obtained.
Age and Criminal Responsibility in Victoria
In Victoria, the age of a child may be relevant to criminal responsibility and the way police and the courts deal with an alleged offence.
For children below the relevant age of criminal responsibility, criminal proceedings cannot ordinarily be brought. For children between the ages of 12 and 14, the principle of doli incapax may also be relevant. This concerns whether a child understood that their conduct was seriously wrong in a moral sense, rather than merely naughty or mischievous.
Voluntary Attendance Compared with Arrest
Police may ask a child to attend a police station voluntarily or may arrest the child.
Where attendance is voluntary, it is important to understand whether the child is actually free to leave and whether police suspect them of an offence.
If a child is arrested, they are taken into police custody and must be dealt with according to the applicable requirements. Once at the police station, a child may be interviewed by police. Victoria Police states that a person under 18 will have an adult present during the interview, which may be a parent, guardian or independent person.
Whether the child attends voluntarily or is arrested, obtaining legal advice before an interview can be important.
The Police Caution and the Right to Silence
Before questioning a child suspected of an offence, police must provide the applicable caution. The caution is intended to explain that the child does not have to answer questions and that anything said may be used in evidence.
The right to silence generally means that a child does not have to answer questions about an alleged offence. There may be circumstances in which a person is required to provide particular information, such as their name and address.
A child may therefore choose not to answer questions, including questions about the alleged offence, after receiving appropriate legal advice.
Legal Advice Before a Police Interview
A child suspected of an offence should have an opportunity to obtain legal advice before deciding whether to participate in a police interview.
A lawyer can advise about:
whether the child is required to attend or remain at the police station;
the right to silence;
whether the child should participate in a formal interview;
the nature of the allegations and available evidence, where disclosure has been provided;
potential defences or issues arising from the allegations; and
possible outcomes, including diversion or Children's Court proceedings.
Victoria Police states that young people will, in most cases, be able to call a lawyer when they are at a police station.
A lawyer's role is separate from that of a parent, guardian or independent person. A support person does not provide legal advice.
The Role of Parents and Guardians
Parents and guardians can play an important role when police want to interview a child. They may attend the police station, help arrange legal assistance, provide emotional support and inform police of any relevant medical, disability, communication or welfare issues.
Parents should avoid pressuring a child to answer questions, make admissions, apologise or “tell their side of the story” before the child has received appropriate legal advice.
A parent may also have a conflict of interest, for example where they are a witness, alleged victim or another person involved in the investigation. In those circumstances, another appropriate adult or independent person may need to be involved.
Independent Persons and Support Persons
An adult will be present when a person under 18 is interviewed by police. Victoria Police states that this can be a parent, guardian or independent person.
An independent person may assist the child during the police process and help ensure the child understands what is happening. They do not act as the child's lawyer and do not provide legal advice about whether the child should answer questions.
A support person may also be appropriate where a child has particular vulnerabilities, such as disability, communication difficulties or other support needs. The precise role and legal requirements will depend on the circumstances.
Aboriginal and Torres Strait Islander Children
Additional care may be required when police deal with an Aboriginal or Torres Strait Islander child.
Cultural safety, communication, family involvement and access to appropriate support may be important considerations when arranging an interview. The child's particular circumstances and support needs should be considered before questioning proceeds.
What Happens During a Formal Record of Interview?
A formal police interview is generally recorded, and police may ask the child questions about the alleged offence and the circumstances surrounding it.
Police may ask the child to explain where they were, who they were with, what they saw or did, and whether they accept or deny the allegation.
If the child chooses not to answer questions, the interview may still proceed. The child may indicate that they do not wish to answer particular questions or otherwise exercise their right to silence.
A child's age, maturity, understanding and vulnerability may be relevant when considering the circumstances in which an interview or admission was obtained.
Should a Child Answer Police Questions?
Whether a child should answer police questions depends on the circumstances and should generally be considered after obtaining legal advice.
Relevant considerations may include:
the child's age and maturity;
whether they understand the caution;
the seriousness of the allegation;
the evidence available to police;
whether the child may have a defence;
whether the child may become confused or distressed; and
whether answering questions could result in unintended or inaccurate admissions.
Children may be particularly vulnerable during police interviews. They may want to please adults, end the interview quickly or agree with suggestions even when those suggestions are inaccurate.
This is one reason legal advice before an interview can be important.
If Police Want to Interview a Child at School
Police may sometimes seek to speak with a child at school.
If this occurs, parents should clarify whether the child is being spoken to as a witness, victim or suspect and whether the child is free to leave or decline to answer questions.
Where police suspect the child of an offence, the applicable requirements concerning cautioning, legal advice and the presence of an adult should be considered.
If there are concerns about the proposed interview, a parent or guardian can seek legal advice before the child answers questions.
Admissions and Whether an Interview Can Be Used in Court
If a child makes admissions during a police interview, the prosecution may later seek to rely on those admissions in court.
The court may consider the circumstances in which the admissions were obtained, including issues concerning the child's understanding, the caution given, the presence of an appropriate adult or independent person, access to legal advice and the conduct of the interview.
The admissibility of an admission will depend on the particular circumstances and the applicable law.
After the Interview
After a police interview, several outcomes are possible. Police may:
release the child without charge;
continue investigating;
issue a caution;
refer the matter to a diversionary or youth justice process;
charge the child and release them on bail; or
charge the child and bring them before a court.
Where a child is charged, the matter may proceed in the Children's Court of Victoria. The process differs from the adult criminal jurisdiction and involves specific procedures applying to children and young people.
Why Early Legal Advice Matters
A police interview can have consequences for any later criminal or Children's Court proceeding. Early legal advice can help a child and their family understand the allegations, the applicable rights and safeguards, and the options available before an interview takes place.
A lawyer can also advise on whether the child should participate in an interview and the potential consequences of answering questions or exercising the right to silence.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.