Arrested children should rarely be held in custody and this situation should be argued against. When interrogated a child has a right to have a parent, guardian or independent person present. An independent person can protect the legal rights of the child.
Arrest of children
The arrest provisions stated above apply to children and to adults. Once arrested, children (under 18) are treated differently by the criminal justice system.
Where the accused is a child, there is a presumption the case will proceed by summons (see s 345 Children, Youth and Families Act 2005 (Vic)). It should be very rare for a child to be remanded in custody and, if it does occur, it ought to be vigorously contested. In deciding whether to remand a child, the Children’s Court will consider the nature and circumstances of the alleged offence and the child’s background, including any prior convictions, and must not remand a child only because the child does not have satisfactory accommodation. (On children’s matters, see The Children’s Court.)
The Victoria Police Manual states that children are to be kept in custody only as a last alternative. The use of bail with conditions is preferable to remand (Victoria Police Manual, operations 113–16: bail and remand). The Victoria Police Manual also sets out where children can be kept until going before a court if they are to be held on remand.
If the suspect is under 18, police must not question or carry out an investigation unless the suspect’s parent or guardian is present. If they are not available, an independent person (see “Role of the independent person”) must be present. The suspect must also be given the chance to talk to the parent, guardian or independent person in a place where they won’t be overheard (s 464E Crimes Act (Vic)).
The police do not have to wait until the parent, guardian or independent person is present when:
• it is felt that communication would result in the escape of an accomplice or the destruction of evidence; or
• the safety of other people means that questioning should not be delayed.
The requirement that interviews relating to indictable offences must be audio or audiovisually recorded also applies to young people.
The role of the parent, guardian or independent person is an important one. According to Victoria Police Manual (operations 112.03: suspects and offenders – interviews and statements), the role is to:
• ensure the child’s evidence is accurately recorded;
• provide emotional support to the child; and
• be able to present an independent account of the interview at any court proceedings.
Without doubt it is also the role of the independent person to ensure that the child understands the caution and their rights and is able to make an informed decision as to how to exercise them. It is not the role of the independent person to determine how the child will respond to the caution or whether they will exercise their rights.
The independent person should not:
• ask the child questions about the offence or about whether they are guilty or innocent;
• act as an authority figure, such as a parent or teacher; or
• place conditions on assistance (e.g. to tell the truth).
Arguably, the police have a responsibility to ensure that the independent person understands their role – including the need to ensure they are satisfied the child understands the caution and their rights – prior to the commencement of any interview. If the independent person does not understand their role, or the meaning of the caution and rights, they are not in a position to act in the role.
The independent person’s role relates only to children. The independent third person’s (ITP) role relates to children and adults with “mental impairment”, defined as including intellectual disability, mental illness, acquired brain injury or dementia. For more information about the ITP, see Disability and criminal justice.