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3.2.3 Consent for police interviews for children in the CEO's care

Last Modified: 28-Jun-2018 Review Date: 01-Oct-2016

Purpose

To inform child protection workers of their role and responsibilities when a child in the CEO’s care is suspected of criminal offending by police and is requested to participate in a Police interview or consent to DNA evidence collection.

Note:  CEO refers to the Chief Executive Officer of the Department of Communities (Communities).

Practice Requirements

  • Child protection workers must determine who has parental responsibility for the child and consider involvement of parents if appropriate.
  • Child protection workers must be aware of their role and their responsibility to act as a Responsible Person and to protect the rights of a child in the CEO’s care.
  • Child protection workers must obtain legal advice before seeking consent from the team leader for Police to collect DNA evidence from a child in the CEO’s care.
  • The team leader must consider whether to approve the decision to consent to collection of DNA evidence from a child in the CEO’s care.
  • Child protection workers must confirm that carers understand that they cannot provide consent to collect DNA evidence and/or act as a Responsible Person for a child in the CEO’s care.

Procedures

  • Authority of the CEO to consent on behalf of a child
  • Police interviews for a child in the CEO’s care suspected of an offence
  • Police request for a child in the CEO’s care to consent to DNA evidence collection
  • Responsible Person – role and responsibility
  • After hours - consent and legal advice
  • Authority of the CEO to consent on behalf of a child

    Section 127 of the Children and Community Services Act 2004 authorises the CEO to give consent in lieu of a parent in some cases where that child is:

    • in provisional protection and care (subject to an interim order - s.29(2))
    • the subject of a protection order (time limited) or protection order (until 18), or
    • the subject of a negotiated placement agreement, only if the agreement authorises the CEO to do so.
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    Police interviews for a child in the CEO’s care suspected of an offence

    If Police reasonably suspect a child in the CEO’s care has committed an offence they may seek to interview the child.  Only the child can give consent (refuse or withdraw consent) to being interviewed by Police.  In all circumstances a child in the CEO’s care must be provided with legal advice before being interviewed by Police.  If an interview proceeds Communities must confirm that the child has a Responsible Person present.

    The Responsible Person must confirm that the child understands that interviews are voluntary, what they are being asked to consent to, and inform them of their right not to answer questions without legal advice. For further information refer to section below on Responsible Person – role and responsibility.

    Where a child in care is arrested and charged with an offence by Police, legal advice should be obtained from Legal Aid (1300 650 579), Youth Legal Service (9202 1688), the Aboriginal Legal Service (9265 6666), Aboriginal Family Law Services (1800 469 246) or a relevant private legal practitioner.

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    Police request for a child in the CEO’s care to consent to DNA evidence collection

    Western Australia Police must seek consent from Communities before collecting DNA evidence from a child in the CEO’s care.  If Police request Communities' consent to collect DNA evidence from a child in the CEO’s care who is suspected of a serious offence, child protection workers must clarify with Police if the DNA is required for identifying purposes or for forensic purposes (DNA can be required for forensic purposes whether the offence is serious or not; DNA for identification purposes can only be required for serious offences).

    DNA evidence collection is either non-intimate (including but not limited to swabs, impressions and having material taken from under the fingernails) or intimate (including but not limited to swabs, impressions of external body parts and blood). 

    Police must inform the Responsible Person of the offence the child is suspected of having committed, the purpose of the procedure, how the procedure will be done, and other relevant information. 

    Note: Communities can provide consent for Police to collect DNA evidence from a child in the CEO’s care where that child is in provisional protection and care, or subject to a protection order (time limited) or a protection order (until 18).

    Communities can only give consent for Police to collect DNA evidence from a child in the CEO’s care who is subject to a NPA, where providing consent was part of the NPA agreement under S.127 of the Act.

    Communities cannot give consent for Police to collect DNA evidence from a child in the CEO’s care where that child is provided with a placement service under S.32(1)(a). Consent should be obtained from the child’s parents. 

    Taking DNA evidence from a Victim or Witness

    Where a child in the CEO's care is considered to be an Involved Person (witness or victim) Police can request consent to capture DNA. Child protection workers should always assist police to help identify the perpetrator of a crime.  

    Minor offence

    If Police reasonably suspect a child in the CEO’s care of a minor offence and request consent to collect DNA evidence from the child, child protection workers must seek legal advice before obtaining team leader consent.  Police are not permitted to force collection of DNA for a minor offence.  

    Serious offence

    If police reasonably suspect a child in the CEO’s care of a serious offence they may seek consent to collect DNA evidence from the child. Child protection workers must request information from Police regarding the offence, and clarify whether the offence is considered a serious offence or a minor offence within the legislation.  This information should be recorded in the child’s case file in Objective.

    Generally where Police advise the offence is serious (an offence that carries an imprisonment term of 12 months or more) consent for the child to be subjected to DNA collection should be provided (by the team leader) after legal advice is obtained. Child protection workers should advise the child that if consent is refused or withdrawn, Police have the option of holding the child until they can obtain a warrant to collect the child’s DNA.

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    Responsible Person – role and responsibility

    Who can act as a Responsible Person?

    Only an authorised Communities' officer can act as a Responsible Person for a child in the CEO’s care (as defined in s.30 Children and Community Services Act 2004). Generally, child protection workers should act as the Responsible Person, or if after hours, this role may be undertaken by an authorised officer from the Crisis Care Unit. The Responsible Person must consider the best interests of the child in all decisions. A carer or residential care officer cannot act as a Responsible Person for a child in the CEO’s care.

    Role of the Responsible Person

    The Responsible Person must request and/or consider the following information from Police:

    • the reason for the interview
    • if the alleged crime is considered within legislation to be classed as a serious offence attracting a penalty of more than 12 months imprisonment
    • if DNA collection will be requested, and if so, is the DNA required for identifying purposes or forensic purposes
    • how the child is presenting, are they substance affected, alcohol affected, tired, suffering from mental health symptoms, aggressive or have they missed taking prescribed medication
    • whether the Police are able conduct the interview during business hours or the following day and the urgency for the interview to occur at the time of the request
    • the time of the requested interview and any other factors that may impede the child’s capacity to participate, and
    • how long has the child been in Police custody.

    The Responsible Person should request to talk with the child to confirm they understand what they are being asked to consent to, and inform them of their right not to answer questions without legal advice and that interviews are voluntary.

    During the interview the Responsible Person should:

    • consider if the Police questioning is fair
    • request to stop the interview and seek clarification from Police if the child appears to not understand a question, and
    • request the interview is stopped or request a break if the child appears to be distressed.

    Children granted bail

    Should a child in the CEO's care (s.30) be granted bail by Police, the Responsible Person must confirm that Police record that the child is to ‘reside at an address arranged by Communities’ on the bail form.  If a child is bailed to a specific address this may limit available placement options.

    The Responsible Person’s personal details should not be listed on bail forms.  Bail forms must be signed by the Responsible Person on behalf of the Director General of the Department of Communities, along with the address of the district office that holds case management responsibility for the child.

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    After hours - consent and legal advice

    The Crisis Care Unit must be contacted if, after normal business hours, police request:

    • consent to interview a child in the CEO’s care
    • consent to collect DNA evidence from a child in the CEO’s care, or
    • a Responsible Person is required to be present.

    Access to private legal practitioners who can provide after hours legal advice to young people in care should be discussed with Crisis Care staff.

    Crisis care staff must follow the procedures for child protection workers outlined above. 

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