Role of the Responsible Adult or Independent Person at police interviews with a child or young person (under 18)
This fact sheet is for adults who are looking after a young person (under 18) who is accused of a crime and in police custody.
A Responsible Adult in relation to a young person (under 18) means a parent, guardian or other person who has the responsibility for the day to day care of the young person.
Young people (under 18) have additional rights when arrested in custody that adults do not have, as outlined below and in our fact sheet ‘Police powers: Arrest’.
Police to notify the Responsible Adult when a young person is apprehended by them
If a young person has been arrested and taken into custody the Police should notify the young person’s Responsible Adult as soon as practicable and keep them informed as to the whereabouts of the young person.
The degree of responsibility required of the Responsible Adult will depend on the independence and maturity of the young person such as whether they are employed or living independently and how close in age they are to 18.
Police to notify the Responsible Adult of their intention to question a young person
If Police want to ask a young person who has been arrested questions about an offence, the Police must ensure that a Responsible Adult has received notice of the intention to question the young person. (This does not apply to any questions that the Police are required to ask by written law, e.g.: whether they were the driver of a motor vehicle or the young person’s name, address and date of birth.)
Police to notify the Responsible Adult of their intention to charge a young person
If the Police charge a young person with an offence the Police must give the Responsible Adult notice of the intention to lay the charge as soon as reasonably practicable.
The notice given to the Responsible Adult will usually be by telephone or in person but can be by mail sent to the address of the Responsible Adult. If the Responsible Adult cannot be located or it would be inappropriate to give the Responsible Adult notice then the Police do not have to give notice.
Responsible Adult to attend the Police Station
The Police should request that the Responsible Adult attend the Police Station if they intend to interview the young person about the offence but, if they are unable to locate a Responsible Adult, they should find another person who can take on the role of the Responsible Adult (called an Independent Person) when the young person is questioned by Police.
Why should a Responsible Adult attend the Police Station
Young people are vulnerable and experience particular disadvantage when in Police custody. Having a parent, guardian or independent person present when being questioned by Police about their alleged involvement in criminal conduct goes some way to protect the interests of the young person.
There is no law in Western Australia that provides that Police must not question a person under the age of 18 unless there is also present a parent, guardian or independent person, unlike legislation existing in other states (Victoria, NSW, Queensland, ACT and NT) but the Commissioner of Police has made rules or orders contained in “Commissioner’s Orders & Procedures Manual” (COPS Manual), which states that a young person should have a Responsible Adult or Independent Person present when a young person is interviewed.
Unless a Responsible Adult/Independent Person is present, any statement or confession given to the Police by a young person may be held inadmissible in court.
Who can be an “independent person”?
- A person responsible for the young person (parent, guardian, Department of Child Protection Case Worker).
- An adult other than a member of the Police who is present with the consent of the person responsible for the young person (if the responsible person cannot be found).
- In the case of a young person of or over age 16, an adult who is present with the consent of the young person (e.g. Youth Worker, older brother, uncle).
- A lawyer of the young person’s own choosing (if 16 or over).
- A person who has not been concerned in the investigation of the offence and has no interest in the outcome of the investigation.
- A Justice of the Peace (as a last resort).
- Where practicable, persons of the same sex and similar ethnic, cultural and/or religious background to the young person.
What is the Responsible Adult/Independent Person’s role?
There is no legislation but case law has held:
The role of the Responsible Adult/Independent Person attending the Police Station and the Police interview is an active one not a passive one and includes:
- Acting as a check and protesting against any perceived unfairness or oppressive behaviour.
- Advising the child of his or her rights, which could include a reminder of the right to silence or an admonition against further participation in the interview in the absence of legal advice.
- Within appropriate limits, assisting a timid or inarticulate child to frame his or her answers to the allegation.
The Role of Responsible Adult/Independent Person cannot be fulfilled:
- If prior to or during the interview the (Independent) person appears to have adopted a substantially judgmental and admonitory position with respect to the alleged offending with the young person; or
- If there is a lack of understanding of the role as a result of not having it explained to him or her nor provided with the “Guide for Independent Persons at Police Interviews” by the Police.
- If the Responsible Adult does not speak or understand English well and has no interpreter (it is not sufficient if their child speaks fluent English).
Does the young person have to do a police interview?
No – he or she can say they do not wish to be interviewed.
Alternatively, the young person can appear in the interview and, apart from giving his or her name, address and date of birth, say “no comment” to any other questions put to them.
What can the Responsible Adult/Independent Person do during the interview?
The Responsible Adult/Independent Person should ensure that the young person continues to agree to be interviewed so that the interview remains voluntary.
Apart from introducing themselves initially in the interview room, the Responsible Adult/Independent Person must not get involved in answering the questions for the young person nor adopt a disapproving stance against the young person (e.g. eye rolling, sighing). The young person must be made to feel that the Responsible Adult/Independent Person is a support person for them.
However, the Responsible Adult/Independent Person can talk during the interview. They can explain anything or ask for clarification of anything that they believe the young person does not understand. What they cannot say is things like “Go on tell them the truth, it will go better for you”.
The Responsible Adult/Independent Person can ask for the interview to stop at any time if they become concerned about the young person.
The Responsible Adult/Independent Person can terminate the interview and speak to the young person to find out if they want to continue. They can ask for a break if they feel the young person needs it, they can ask for the interview to stop if they feel the young person has had enough or it is not in their best interest to continue.
Can the Responsible Adult/Independent Person speak to the young person in private before the interview?
Yes. Before the interview the Police “COPS Manual” and case law suggest that the Police must allow the young person to communicate with the Responsible Adult/Independent Person in private before the commencement of questioning where conversation will not be overheard.
Exception: If the communication would result in the escape or destruction of evidence, the safety of persons would be at risk or the questioning is so urgent that it should not be delayed.
What sort of information should the Responsible Adult/Independent Person try to obtain from the young person if speaking to them in private?
- Whether the young person is intoxicated or has taken any drugs or is sleep deprived (if under the influence of anything then what he or she says in the interview may not be accurate).
- What level of English the young person has and whether an interpreter is needed.
- Whether the young person has any injuries or is sick. (If the young person is sick or injured then he or she has the right to any necessary medical treatment. This will usually mean the Police take him or her to Emergency at the Hospital to be seen rather than a Doctor coming to the Police Station).
- Whether the young person can read and write, or has any mental impairment such as an intellectual disability or mental illness. If this is the case, the young person may not say. The Independent Person will have to determine this themselves.
- Whether the young person wants to speak to the Police and tell them what he or she knows, or whether the young person wants to remain silent.
- The Independent Person cannot tell the young person whether to speak to the Police – this must be the young person’s decision. If pressure is put on the young person to “Tell the truth and they will go easy on you” then the interview may not be admissible.
- The Independent Person is not in a position to tell the young person that they will get bail if they co-operate with Police, nor give any legal advice (unless the Independent Person is a lawyer).
- The Independent Person is not there to “save” the young person. They are there as a support person only.
- If the young person is adamant that they do not wish to speak to Police, then the Independent Person should advise the Police of this.
- The Independent Person is not there to speak in detail about what the young person has done and should not tell the young person what they should tell or not tell the Police.
- Be aware of an Arrested Suspect’s Rights in Custody, one of which is the Right to Communicate with a Lawyer. Young people will often waive this right because they just want to get it over and done with.
There may be problems communicating with a lawyer if the young person doesn’t know any. The young person can contact Youth Legal Service, Aboriginal Legal Service (if Aboriginal) or Legal Aid WA during office hours. Aboriginal Legal Service also has an out of hours telephone line available on 08 9265 6644.
The young person can always ask to be interviewed after they have spoken with a lawyer.
Will the Responsible Adult/Independent Person have to attend court?
The Responsible Adult will have to attend court if the young person is charged.
An Independent Person will not necessarily have to attend court. They may be called if there is a dispute about whether the interview was conducted voluntarily.
It is recommended that after the interview, the Responsible Adult/Independent Person make notes about everything that occurred (as a memory refresher) in case they are called as a witness.