When your child has been arrested, it’s important to have a basic understanding of their rights, even though you don’t have long to get your head around what is happening. Here’s a basic guide to the process.
Under the law, children are defined as being those under the age of 18 years and are treated as vulnerable persons.
Vulnerable persons have more rights than other people under arrest, most specifically the right to have a support person present during any investigative procedure. This includes questioning and searches.
Arrival at the station after arrest
Once an arrest has been made, the child will be taken into custody.
The law requires that the custody officer assist the child in exercising their rights, including making a phone call to a support person or lawyer.
The support person can be a parent, trusted friend or relative of the child. The support person can even be a lawyer, provided that the child agrees to this. The support person must not be another police officer.
The child cannot waive their right to have a support person present. That means that a support person must be present regardless of the child’s instructions. Any investigative procedure that is conducted without a support person can be challenged, and the evidence declared inadmissible.
If the support person unreasonably interferes with the investigation, they may be excluded, but another support person must be in place before the investigation can continue.
Interview and questioning
Interviewing the child must be done in the presence of a support person. In the case of children aged up to 14 years, the support person should be the parent or guardian of the child (or the parent or guardian should give permission for another support person to attend). In the case of a child aged between 14 and 17 years, they can choose the support person.
At this stage, it would be wise to consult an experienced criminal defence lawyer who can attend the interview and provide the legal representation for your child. Good legal advice might assist the matter to be resolved quickly, possibly without criminal conviction.
Prior to arrest, police can search a child on reasonable suspicion that they are carrying illegal items, drugs, knives or weapons, or tools that they suspect may have been used to commit a crime. While police can ask the child to remove a jacket and other outer clothing, public strip searches are illegal.
Following arrest, police can conduct a strip search in a private part of the station, in the presence of an officer who is the same gender as the child. They are not allowed to touch the child.
A strip search may be conducted if there is a suspicion that the child is:
- Concealing evidence relating to the crime.
- Concealing a dangerous item.
- Concealing drugs or weapons.
The child and support person must be informed of the reason for the search. Internal searches (body cavity searches) are not permitted under any circumstances.
If the child is younger than 14 years, police must have a court order to photograph the child, take fingerprint samples or collect samples for DNA testing. For children aged 14 to 17 years, fingerprint samples and photographs may be taken, but only to identify the child. A court order must be sought for DNA samples to be taken.
Protected admissions and cautions
For less serious offences, your child may be invited to make a protected admission, in which they can admit to committing the offence with an undertaking from police that the admission will not be used against the child then or at any later date. If a protected admission is being offered by the police, consider seeking advice from a criminal defence lawyer before proceeding with the admission.
A protected admission may have some long-term advantages – it prevents exposure to a long and stressful court process, and avoiding a criminal conviction has obvious advantages.
Seek expert help
There are many complexities surrounding the arrest of a child and the process can be as traumatic for the parents as for the child. It is important to remember the child’s right to have a support person present at every stage of the investigation. If in doubt seek urgent legal assistance from a criminal lawyer in Sydney or elsewhere in NSW.