We are all aware of the criticisms abounding in the press regarding the lack of adherence to children's legal rights in schools.
Strip searches being conducted without considering children's welfare and well-being, without appropriate adults being present, and, for the most part, where the child has been innocent of any wrongdoing.
We are now seeing the same lack of adherence to justice concerning children being questioned about criminal offences.
Consider a 10-year-old being interviewed about a sexual allegation without a parent or legal representation in the presence of a police officer and senior member of staff present.
You are horrified, “it would never happen here”. Sadly, it is.
Criminal Allegation Interviews With Minors
We have had an increasing number of parents approach us recently regarding criminal allegations that have been made against their child by another pupil and how they feel that the school, and the police, have let them down by the way they investigate that allegation.
Schools are obliged to notify the police if any serious criminal offence is reported to them, irrespective of their views on the legitimacy of any allegation.
Following a report, the police normally wish to speak to the suspected child and the child making the complaint.
The school and the police will typically make their own arrangements for this to happen. Parents are frequently not consulted. Instead, they are simply being informed about what has been decided, if they are notified at all.
If you know that your child has had allegations against them and is to be questioned, you need to be mindful of your child's rights. Allegations can escalate into a full criminal investigation; even if the allegations are dropped, what is recorded on your child's record can lead to concerns later.
Know the facts
Firstly, it is vital to ascertain why questions are being asked.
Suppose the police officer believes that any child (aged 10 to 17) has committed or suspects that a child is involved in committing a criminal offence. In that case, any questioning about that involvement should be regarded as an interview.
Consequently, your child is entitled to be cautioned and have all the protections afforded to them by the Police and Criminal Evidence Act (PACE).
These rights apply irrespective of what label is applied to that questioning by the investigators or whether that questioning takes place in a police station or at another venue.
If the questions occur at school, and your child is not under arrest, this would be defined as a voluntary interview.
A child or young person should not be interviewed or arrested at school if such action can possibly be avoided.
However, if a police officer wishes to speak to your child, then trying to arrange this on a voluntary basis is the ultimate aim.
You don't want your child arrested and taken to a police station if this can be avoided.
Parent Or Guardian Presence
Usually, a child or young person under 17 should only be interviewed in the presence of a parent or guardian unless there are good reasons to circumvent this.
We would argue that such reasons will seldom apply.
Headteachers must satisfy themselves that any such reasons are appropriate and that the interview cannot wait. Failure to properly consider this issue could be viewed as a dereliction of the safeguarding duty owed to the child.
If the interview is to go ahead without a parent, the head or a senior staff member should be present if no other appropriate adult attends. The officer cannot question the child alone. An appropriate adult must be present.
What Happens If A Parent Or Guardian Isn’t Present For The Interview?
In the cases we have dealt with recently, the above procedure has either not been applied at all, or mere lip service has been paid to the requirements.
Questioning has gone ahead simply because the school and the police officer feel that a member of staff being present is sufficient as the school can act, in certain circumstances, in place of a parent.
Sometimes this relaxation in the procedure is not meant to be a deliberate infringement of a child's rights but stems from an honest but often misguided belief that if we all chat about what has happened, we will be able to clear this up very quickly.
There is a world of difference between being accused of damaging someone's pencil case to an allegation of sexually touching a member of your peer group.
A friendly chat might easily resolve the first allegation, whilst the second matter comes with all sorts of legal concerns and issues, even if the police enquiry is eventually discontinued.
If questioning goes ahead, your child must be formally cautioned, and those present must be satisfied that they fully understand the implications of the caution.
Your child does not have to give any explanation if they do not wish to, but you should be aware of the implications of this.
Children and parents should also be made aware that anything their child says could be given in evidence, in court, at a later date if the matter progresses to charge.
Be aware that the school's principal aims may be to protect the school, protect the school's reputation, protect other pupils, or try to resolve the situation quickly.
Such a position may directly conflict with doing what is right for your child.
So, what about legal advice?
Your child is entitled to free legal advice under the “duty” solicitor scheme, which covers representation for any interview where a police officer is present.
You can also choose to have your child privately represented by a solicitor who regularly deals with schools and the police.
The advantages of engaging such a solicitor privately are that they will be with you for all your concerns, not just for the interview, and can deal with any associated issues that arise with the school, with social services, or simply provide advice on how to deal with peer interactions and social media.
If you cannot afford private funding, your local Citizens Advice Bureau (CAB) can often assist.
If your child is innocent, you will want to try to do everything you can to ensure the matter is resolved as quickly as possible. If the case is dropped, you will also want to ensure that nothing is recorded on your child's record that might impact future plans.
Contact Monan Gozzett
At Monan Gozzett, our education law solicitors are here to help. They can provide expert advice on all of the issues highlighted above.
Contact us if you wish to discuss a case with us.