Police and court
Sometimes carers are called upon to support kids in care through court proceedings or contact with the police. Together, you and your caseworker will be responsible for preparing documents, attending certain appointments and interviews, and giving the child or young person the guidance and comfort they need.
Contact with the police
Interviews and arrests
A person cannot be forced to attend a police interview unless they are arrested. If the police ask the child or young person to come to the station for questioning, then either they, you or the caseworker should ask if the child is under arrest.
If a child or young person is arrested, the police can keep them for up to four hours unless they get special permission from a court to keep them longer.
If they are not under arrest, then they don’t have to go to the interview.
The decision about whether or not a child or young person is to attend a police interview must involve the Minister’s delegate (in other words, the DCJ Manager Casework or equivalent from a non-government agency).
The purpose of the interview must be given some consideration. For example, is the child or young person suspected of committing an offence, or are police attempting to obtain evidence from them to charge someone else?
Call your caseworker
You should contact your caseworker as soon as possible if the child or young person in your care comes into contact with the police. Your caseworker can provide support and assistance in terms of police interviews, obtaining legal advice and the court process.
Attending a police interview
The best interests of the child or young person must always be the primary concern. If the child wants to provide a statement, the caseworker should arrange legal advice before they do so. If the agency manager is of the view that the child should not provide a statement, the caseworker should have a solicitor attend the interview if possible.
If the child is under 14, a parent or guardian should be present for police questioning. Remember that a ‘guardian' is someone who has full parental responsibility for the child. Depending on their circumstances, that could either be the child's legal guardian or a delegate of the Minister (in other words their DCJ caseworker or Manager Casework, or the non-government agency equivalent). Alternatively, the parent or guardian can give permission for another independent adult, such as a carer, to be present.
If the child or young person is 14 to 17 years old, an independent adult can be present during the interview. The independent adult should be someone they can trust: for example, a lawyer, family member, carer, youth worker, or a friend who is over 18. The independent adult cannot be a police officer. If the child or young person asks to have you (the carer) attend as the independent adult, you should contact your caseworker prior to attending the interview.
Everyone has the right to remain silent when being interviewed by police. This means a child or young person doesn’t have to provide any information in an interview except for their name and address.
The principle of Doli Incapax
The principle of ‘doli incapax’ is a common law principle that presumes that a child between the ages of 10 and 14 does not have the capacity to form or possess the criminal intent to commit a criminal offence. The court will act on this presumption unless it can be clearly shown that the child knew their criminal conduct was seriously wrong and not just ‘naughty’.
Obtaining legal advice for the child or young person
Your caseworker can help the child or young person obtain legal advice and representation. The Legal Aid Youth Hotline on 1800 10 18 10 provides free advice to young people under 18 when they have committed, or are suspected of committing a crime. If the child or young person is Aboriginal or Torres Strait Islander, legal advice is also available through the ALS Hotline on 1800 765 767.
The Aboriginal Legal Service
There are rules the police have to follow when speaking to and dealing with indigenous people. This includes calling the Aboriginal Legal Service (ALS) if an indigenous person is arrested and hasn’t organised their own lawyer. If the child or young person is an indigenous person, then they or you or their caseworker should inform the police of this. The police must call the ALS before they question the person.
Obligation to report matters to police
If someone knows or believes that a person has committed a serious indictable offence and has information that might be of material assistance to police in securing the apprehension, prosecution or conviction of the offender, then they are obliged to provide this information to police. It is a criminal offence to fail to provide this information to police. It is also an offence to hinder the investigation of a serious indictable offence committed by another person. An offence is a ‘serious indictable offence’ if it is punishable by imprisonment for more than 5 years. This includes murder, manslaughter, indecent and sexual assaults and producing, disseminating and possession of child pornography. A carer or caseworker may have an obligation to report matters involving a child or young person in care to the police.