Children and police questioning: A rights-based approach

Access to appropriate information

The provision of reliable information to children in a manner that they can fully understand is an ‘essential starting point for stimulating meaningful participation’ (Stalford et al., 2017: 210). Multiple international instruments require that information about the charges, the procedures and the rights to which children are entitled should be provided to the child as soon as possible after first contact, in language they understand (Article 40(3)(ii) of the CRC; Committee on the Rights of the Child, 2019; Guidelines on Child-friendly Justice). The standards also emphasise the supports that need to be in place to help children to understand this information and according to the CRC Committee, providing a written document is insufficient; an oral explanation must be given, with a duty on the authorities to ensure the information is understood (Committee on the Rights of the Child, 2019: para 48).

Although it can be challenging for the police to ensure that the child understands the substance of the information provided to them and its significance, particularly when working under time pressure (Zelle et al., 2015), police interviewed for this study recognised the need for information given to the child to be ‘pitched at a level that they fully understand’ (Garda 1). With regard to their right to being provided with details of the alleged charge against them, the children interviewed explained that the amount of information provided prior to interview varied. While some children considered that they had enough information about why they were being interviewed (Child 7, Child 17), this was not always the case. For instance, some children reported being advised only that Gardaí wanted to speak to them about ‘an incident’ (Child 5), with others saying that more detailed information was only provided during the interview (Child 1).

For children to be able to exercise their legal rights effectively, it is necessary that they should understand the significance of those rights (Feld, 2006). Research has shown that a child’s stage of cognitive development can impact their ability to understand the information they are given, including warnings about their rights (Viljoen and Roesch, 2005; Zelle et al., 2015) and children in such situations may not fully understand their rights and may be more inclined to comply with authority figures (Cleary, 2017; Monahan et al., 2015). Even where children understand the language used in informing them about their rights, they may not understand the relevance of this information, and the potential consequences of waiving their legal rights (Kohlman, 2012; McLachlan et al., 2011; Rogers et al., 2014).

Reflecting these themes, the members of the Garda Síochána interviewed were aware of the challenges associated with accommodating children’s understanding, and of the need to adapt their approach to children’s circumstances. For example, one participant explained the need to ‘break it down for people . . . in ordinary language’ (Garda 6) and in general there was an appreciation of the need to modify language. Gardaí spoke of using ‘simple, ordinary language’ (Garda 7), of trying to ‘explain it in laymen’s terms’ (Garda 5) and of ‘tailoring the language, the terminology . . . and checking their understanding throughout the process’ (Garda 2). This was particularly the case in relation to the legal caution, and police participants appeared to understand the need to try to ascertain how well a child understood the substance of their rights. As one Garda explained, ‘the legal caution (has) to be explained, and explained in ordinary language’, but the importance of continuously checking for understanding was also highlighted (Garda 7). At the same time, participants acknowledged that this was not straightforward and that a child’s relative lack of maturity may lead to them ‘not understanding the gravity of what’s happening with them’ (Garda 1) or the potential consequences of the interview.

Despite Garda awareness of the need to modify their approach, it was clear from the children’s interviews that this had varying levels of success. While a number of children reported that their experience was ‘straightforward’ (Child 5, Child 14, Child 17) and that they had no difficulty understanding what was said to them during the police interview (Child 9), others had not fully understood everything. For instance, one child said that Gardaí used ‘too big words’ (Child 10), while another explained that he ‘kept getting confused’ (Child 3). Technical language (‘law words’) caused particular difficulties (Child 6).

On some occasions, clarity of meaning was provided when sought by the child, either by the Garda or the guardian present (Child 2). While the Gardaí reported finding another way to explain the information where the child’s understanding was lacking, they also reported relying on others involved in supporting the child to understand both information about their rights and the questions they were being asked. Lawyers played a particularly important role in this regard and those interviewed were keenly aware of their responsibility to help children understand the process and the potential consequences for them (Lawyer 2). Interestingly, Gardaí also referred to the presence of a lawyer as a ‘safety net’ for children during the interview process (Garda 4). Similarly, parents could also play a supporting role where a child had difficulty understanding the process. For instance, one Garda explained that they sometimes seek the parent’s support to help their communication with the child (Garda 5). At the same time, consistency was clearly a concern and participants acknowledged that much ‘comes down to the person who’s dealing with them, how well they explain it’ (Garda 6).

Despite these efforts, the true state of the child’s understanding was not always evident and some children interviewed reported that even if they hadn’t understood everything, they would not always seek clarification. This could be because their priority was to try to get the interview finished with as quickly as possible. As one child explained,

. . . I wouldn’t understand it but . . . you just want to answer it all and get out of there. (Child 1)

Some children clearly did not want to acknowledge their lack of understanding. As one lawyer explained, some children ‘don’t understand the question and they will never admit that they don’t know’, saying that this was a ‘massive problem, especially with the boys’ (Lawyer 4).

These difficulties can be compounded where a child has a learning difficulty or experiences other barriers to understanding (Johnston et al., 2016; McLachlan et al., 2014; O’Leary et al., 2013). Lawyers interviewed confirmed that this is an issue in practice too, arising on a regular basis. As one lawyer commented, ‘. . . the majority of kids do have learning difficulties’ (Lawyer 2), requiring a process to check their understanding. Other difficulties could arise where a child has attention deficit disorder, for instance, which could result in inappropriate or nervous laughter which might be misunderstood and ‘antagonise’ the police (Lawyer 3). Gardaí interviewed showed an awareness of this issue, explaining that in such cases, they would seek support from other sources, speaking to parents or to ‘a doctor or . . . an agency that might be dealing with that specific learning difficulty’ to get an understanding of how to deal with the issue if it arises (Garda 6). Lawyers interviewed also described seeking access to ‘a child psychologist or getting a psychiatrist report’ if there was a significant concern (Lawyer 2), a step that might result in the interview being halted (Garda 8).

Clearly, difficulties arise in practice when trying to assess the child’s level of understanding and identify any barriers to effective communication. While Gardaí spoke about the need to ‘constantly [look] for vulnerability or for their cognitive understanding’ (Garda 1), it is notable that no professional supports are currently available to assist this process.

Access to legal advice

Enabling children to fully understand and participate in the process may require access to appropriate legal assistance. International law provides that all children have a right to access legal advice as part of their right to a fair trial, and according to the CRC Committee, this right must be respected from the investigation stage of the criminal process (Committee on the Rights of the Child, 2019: para 49; Guidelines on Child-friendly Justice). This study highlights that the need for this advice is especially critical for a child who has difficulty comprehending information provided or questions asked during the police interview.

In this study, the children reported being advised of their right to consult with a lawyer prior to being interviewed and Gardaí explained that they placed significant emphasis on the desirability of children accessing legal advice, to the extent of ‘overemphasising’ its importance (Garda 8). Gardaí recognised that having a lawyer present was an important safeguard that allowed them to concentrate more on the interview (Garda 1), whereas others spoke about the transparency it brought to the process, with a decreasing likelihood of the process of police questioning being challenged subsequently in court (Garda 8).

At the same time, a number of the children interviewed chose not to exercise their right to consult with a lawyer prior to being questioned, a finding that broadly mirrors the results of other studies (Cleary, 2014; Feld, 2006; Kemp et al., 2011). Given the small-scale nature of this study, it is difficult to say with certainty how often children waive their right to consult with a lawyer in Ireland. For instance, one Garda advised that in their experience that ‘it’s rare these days that they don’t’ [consult a solicitor] (Garda 4). However, this was not the universal experience and one lawyer reported that children ‘will regularly refuse the right to consult with a solicitor’ (Lawyer 4). This seemed to be borne out by the children themselves, who reported that they had not always chosen to speak to a lawyer before interview, despite being advised of their right to do so (Child 4).

Research suggests a myriad of reasons why children choose not to consult a lawyer, including eagerness to leave the police station as quickly as possible, the perceived seriousness of the offence and the lack of availability of a solicitor (Skinns, 2019). Studies have also found that children may not fully understand how a lawyer can help them during police questioning (Kemp et al., 2011; Peterson-Badali et al., 1999). Children often choose to take decisions that will hasten the end of the questioning process (Cleary, 2017; Kemp, 2013). Reflecting these findings, in this study, one child commented that ‘. . . it takes time for them [a solicitor] to come and it’s just a whole lot of hassle . . . I just want to get home as quick as I can’ (Child 11). The time it takes for a solicitor to attend was also identified as a reason for a child choosing not to wait, with one carer describing the scenario as follows:

They’re in the station, an hour’s a lifetime’s struggle and they’d do anything to get out. So, they’re likely to speak, talk, do anything. Solicitor is the last thing on their mind. (Carer 2)

Other reasons why a child may not seek legal advice may include their failure to appreciate the seriousness of their situation (Lawyer 4) or their perception that they did not need a lawyer because they already felt able to respond to questioning without support (Child 2, Child 5, Child 16, Child 17). At the same time, those children who did seek legal advice prior to the interview spoke positively about this experience (Child 14), noting that it was particularly helpful to have someone ‘fighting the case with me’ (Child 15) and being ‘on your side’ (Child 9). For other children, a lawyer was an important source of information, with a number of children saying that solicitors had provided them with information about the interview (Child 7, Child 10). In addition, children referred to the benefits of legal advice in helping them to navigate the questioning process (Child 12, Child 14) and, in some cases, felt that the police would treat them differently and ‘try to intimidate you if your legal advice isn’t there’ (Child 7).

Some adult participants questioned whether children should be able to waive their right to access legal advice (Lawyer 2, Lawyer 4). Interestingly, a number of child participants who had waived their right to consult a solicitor indicated that they would make a different decision with the benefit of hindsight (Child 2, Child 19). Indeed, one child suggested that children should not be able to be questioned without first getting legal advice:

I think that a solicitor should be mandatory because when you’re younger you’re just going to say, ‘no I don’t want a solicitor, I just want to get out of here’. (Child 1)

In conclusion then, although Garda participants were supportive of children’s right to access legal advice, other factors clearly impact on children’s exercise of this right. Overall, and notwithstanding the challenges (e.g. delay) that would need to be addressed to make this procedural safeguard effective, this study adds strength to the argument that the right to access legal advice should be mandatory for children.

The role of parents in the questioning process

In addition to support from lawyers, other support from adults is also necessary to fully protect children’s rights. International instruments highlight the important role parents play in providing support and assistance to children in conflict with the law. In addition to the duty on parents to support children’s exercise of their rights (Kilkelly, 2020), more specific standards require that notice of the criminal charge against the child should be given promptly to their parent/guardian and that contact with a parent/guardian should not be delayed due to resource issues (Committee on the Rights of the Child, 2019: para 47). The CRC Committee has recommended that states should legislate for the maximum involvement of parents throughout the proceedings including the questioning process (Committee on the Rights of the Child, 2019: para 57), emphasising the importance of the emotional and psychological support they can provide (Committee on the Rights of the Child, 2019: paras 56–57).

However, the role of parents in police questioning of children is not clear-cut and problems can arise where it is difficult for parents to attend the police station (Broeking and Peterson-Badali, 2010) or their presence is not constructive either to the police investigation or to the child’s exercise of their rights. These issues emerged during this study also with Gardaí highlighting that in some cases it was difficult to secure a parent/guardian’s attendance. This could be caused by multiple issues; for instance, one Garda commented as follows:

Sometimes . . . their heart is broken with a child. They just don’t want anything to do with it . . . it can be logistical too . . . having to mind other children. (Garda 7)

Difficulties can also arise where the presence of a parent/guardian is considered unsuitable for some reason. In some cases, a child may not want their parent present and may prefer another adult (Garda 8), while in others, a parent may be a co-accused (Garda 2). In these cases, Garda participants reported asking another adult from the child’s family or from the community to sit in on the interview (Garda 4).

The legal basis for this approach is set out in the Children Act 2001, which requires notification to a parent, guardian, adult relative or ‘other adult’ when a child is to be questioned. Although the Treatment of Persons in Custody Regulations refers to an ‘adult relative or some other responsible adult’, however, Irish law does not indicate who this ‘responsible adult’ might be. As such, there is no established system of ‘appropriate adults’ – such as that established by statute in countries such as England and Wales – who can be called upon where a parent or guardian cannot attend a police interview (see further, for example, Dehaghani, 2022; Dehaghani and Newman, 2019; Pierpoint, 2006). Instead, in Ireland, a range of individuals, including Peace Commissioners – who have no specific training to support children during police interviews – can be called upon (Skinns, 2019). Nor, by contrast with jurisdictions such as New Zealand, does Irish law indicate what role this ‘adult’ might play (Forde, 2022).

Some of the children in this study attached importance to the support of having their parent/guardian present during the questioning process. One child explained that they ‘felt safer’ with their parent present (Child 17), with others noting that the police would ‘always treat you well when your parents are there’ (Child 2). Other children referred to the sense of comfort they derived from having a parent present (Child 18, Child 19), noting that a parent could give them ‘a bit of guidance’ (Child 14). However, this was not the universal experience. Some children did not find it helpful to have their parents with them (Child 5); such as where their relationship was not good (Child 16), or where they did not want their parents involved given the nature of the offence. As one child explained, ‘you don’t want your Ma to hear some of the details’ (Child 13). In most circumstances, children favoured having a parent or trusted adult present to offer support, conscious of the clear benefits this provided.

A number of other issues also arise in relation to the attendance of a parent/guardian or ‘other adult’ at police interviews. One issue that arises is the lack of clarity regarding the role of a parent in this situation. For instance, some participants commented that parents typically played ‘no active role’ in the interview process (Garda 3), beyond being present (Lawyer 3, Child 1). This might arise from the fact that the role of the parent/guardian is not defined in Irish law and they receive no written guidance in advance of the interview process and no information about what is involved. Research indicates that the absence of a clearly defined role for parents/guardians and other adults during police questioning of children can result in confusion (Broeking and Peterson-Badali, 2010). Studies have noted that parents can be a problematic or disruptive presence, or a supportive one during this process (Cleary and Warner, 2017). This concern resonated in this study also, with participants noting that when asked to attend a Garda station, parents’ reactions ‘all vary so much’ (Lawyer 2), and in some cases could complicate the process (Lawyer 1, Garda 2). For instance, a parent might volunteer to the police, prior to the interview, information prejudicial to the child (Lawyer 2). In light of these issues, some study participants expressed the view that it may be better in certain instances for someone, other than a parent/guardian, to fulfil this supportive role (Lawyer 2, Garda 8).

Other research has also drawn attention to the complexity of the role parents and guardians are expected to play during child questioning by the police. On the one hand, parents are expected to look out for a child’s interests, and, on the other hand, they may be expected to encourage the child to take responsibility for wrongdoing and to act as a moral influence (Cavanagh and Cauffman, 2017; Cleary and Warner, 2017; Cohen, 2020). Often, parents will not have the necessary knowledge about the questioning process and about children’s rights within that process to advise them adequately (Cleary and Warner, 2017; Woolard et al., 2008), and it is arguably unfair to place parents in such a position of conflict (Cleary, 2017) given that in some situations, they may not be capable of providing impartial support (Quinn and Jackson, 2007).

Notwithstanding the concerns highlighted above, Gardaí acknowledged it as important that the child ‘has somebody that they can talk to or lean towards or somebody that is in their corner’ (Garda 7). Nevertheless, as noted above, it is a gap in the Irish framework that there is no formal system to ensure that appropriately qualified and trained individuals are available to act in this role (Pierpoint, 2000, 2006) and the lack of clear statutory requirements as to the role the individual is expected to play have the potential to lead to inconsistent and unsatisfactory approaches (Dehaghani, 2016; Dehaghani and Newman, 2019).

Vulnerability and ill-treatment

The vulnerability of children during police questioning emerged very strongly from the study in line with previous research (Cleary, 2017; Kilkelly, 2011). In recognition, Irish law provides that a ‘member in charge’ of the Garda station has responsibility to ensure the child is looked after and children in this study acknowledged that it was ‘kinda helpful’ to have this individual checking in on them while they were in the police station (Child 11).

Research has documented that the experience of being detained in a police station or being held in custody overnight can have a significant impact on children’s experiences of being questioned (Gooch and von Berg, 2019). The inadequacy of facilities for children who are detained in Garda custody and their unsuitable nature were commented upon both by Gardaí and by lawyers interviewed in this study (Garda 6, Lawyer 1). Some children had been detained for some time in a police cell, which was a particular concern for children arrested late at night or at the weekend (Child 2, Child 3, Child 7, Child 9, Child 10, Child 14). Many children reported negative experiences of being held in Garda cells, commenting that the cells were ‘not the best’ (Child 14), ‘crappy’ (Child 13) and ‘freezing’ (Child 3), conditions that clearly increased physical discomfort making the experience more difficult.

A further, more serious concern arose in respect of eight children who reported, unprompted during the study, that they had been assaulted by the police either during the course of an arrest, or while they were being held in Garda custody. ⁵ Children described being ‘bet by a Garda in the cell’ (Child 7) or that ‘sometimes you get arrested and they beat you like’ (Child 8). The severity of this experience is highlighted here:

I had an incident that was in the cell, two Gards came in on top of me, one of them stuck their knee in me head and asked me did I do a load of burglaries and it wasn’t me. (Child 9)

Another child described ill-treatment as follows:

When your Mam’s not there, they kick you under the table. Like they’ll give you a boot under the table. (Child 12)

These issues clearly raise serious concerns about police ill-treatment of children, and while some of the children had formally complained, one child reported that ‘nothing ever came of it’ and that he felt that this meant members of the Gardaí ‘can do what they want’ (Child 1). Although inquiry about the children’s trust in the police complaints process was outside the scope of the study, it is clearly a matter that warrants more careful consideration.

The other serious concern that arose during this study related to children being questioned by Gardaí ‘under the influence of drugs’ (Child 15) or when ‘really heavily intoxicated’ (Carer 1). Children’s vulnerability during police questioning can be further increased when they are under the influence of drugs or alcohol, fatigue or stress (Cleary, 2017), and the impact of this on some children interviewed was clear from this study too, with one child stating that they did not remember much of the interview because ‘half the times that I have been interviewed, I’ve been always on drugs’ (Child 4). Another child stated their opinion very clearly that ‘they shouldn’t be allowed interview you then if you’re stoned’ (Child 12). This has an impact not only on children’s procedural rights and their ability to participate effectively but also on the rights of children related to their well-being and dignity.

Children’s experiences of the questioning process

Police questioning can clearly be a stressful process for children, and this can have an impact on young people’s ability to reason effectively (O’Leary et al., 2013). In addition, it is important that young people’s perception of time is different to adults – even a relatively short period of time can be perceived as ‘an eternity’ to children who are in a police station being questioned (Cleary, 2017: 121). In this context, the experiences of children interviewed for this study spanned a broad spectrum. A number of children reported that the experience was uneventful, describing them as ‘pretty straightforward’ (Child 17) and ‘grand’ (Child 20). However, other experiences were more difficult, and a number of children in this study commented that they had felt like Gardaí were trying to ‘trick’ them (Child 1, Child 12, Child 19).

Some very negative experiences were also reported, with one lawyer commenting that the behaviour they had witnessed fell ‘below the standards of how a young person should be treated in a Garda station’ (Lawyer 3). Children themselves reported being called names by Gardaí (Child 1) or being shouted at during the course of questioning (Child 2, Child 17). These negative experiences can have a long-term impact on young people (Parent 1) with one child explaining that the experience had stayed with them for a long time afterward and that he had felt ‘shook for about 3 or 4 months’ (Child 16).

Notwithstanding the small number of participants in this study, it is stark how varied the experiences were between individual children. Furthermore, individual children reported very variable experiences during the different times that they had been questioned. In this respect, much depends on the approach of individual members of the Garda Síochána. One child summed this issue up succinctly:

I’ve been interviewed by the Gards a load of times so it’s kind of normal at this stage but there’s definitely nicer Gards and there’s worse Gards, I can tell you that much like. Like they can definitely do it a nicer way or a worse way. (Child 6)

Lack of consistency in the treatment of children during police questioning thus emerges as a serious concern. On the one hand, some Gardaí were very aware of the impact of their approach and emphasised the importance of treating children with respect (Garda 8). Equally, others were acutely aware of the stress children may be under during questioning and described taking steps to minimise its negative impact so as to lessen its intimidating character (Garda 2, Garda 7, Garda 8). However, awareness of this concern clearly varied from one Garda to the next (Lawyer 3), with one lawyer commenting ‘I’ve had things that have absolutely blown up simply because of the way the Gard handled it’ (Lawyer 2). While good practice clearly exists, therefore, the diversity of children’s experiences highlights the importance of promoting consistency in practice in order to ensure that all children have their rights respected and upheld in practice.

These issues can be compounded by a lack of specialist training and the absence of mainstream supports for police who engage in police questioning of children. In Ireland, Gardaí use the Garda Síochána Interview Model (GSIM); while this is not tailored to the needs of children, Gardaí who took part in this study were positive about the ability of the model to be adapted to make it appropriate for children (Garda 6). Internationally, little research has been conducted on the availability of training for police specifically in relation to interviewing children (Cleary and Warner, 2017), with some research indicating that there is little specialised training available in some jurisdictions (Gooch and von Berg, 2019). The lack of specialised training that is specific to children is also an issue in Ireland, and while Gardaí receive training on vulnerability in a general sense, they do not receive training specific to children or their specific developmental needs (Garda 6). Lack of training among lawyers is also an issue; while lawyers who participated in this study had undertaken training on an ad hoc basis through attendance at seminars, there is no formalised and specialised training required for lawyers who wish to work with children in this context. Both members of the Garda Síochána and lawyers working with children emphasised the need for further training in both professions (Garda 3, Lawyer 2, Lawyer 3, Lawyer 4).