Age of Criminal Responsibility (Scotland) Act 2019 - child interview rights practitioners: question and answer guide

Decision to hold an interview and planning

Can a ChIRP be included in the Age of Criminal Responsibility (ACR) Inter Agency Referral Discussion (IRD)?

No, you should not be included in the IRD. The decision to hold an investigative interview is made at the IRD^[2]. The Scottish Government will contact you after the IRD has taken place and once an investigative interview has been authorised (either by agreement or by child interview order). You will not be responsible for seeking agreement from the child and parent to an investigative interview. This should be sought by police and/or social work only.

When will I (the ChIRP) become involved in the planning for the interview?

The need for an investigative interview is determined at the Inter Agency Referral Discussion (IRD). Once an investigative interview is authorised (either by agreement or by child interview order^[3]) the police will be in touch with you to invite you to join the police and social work interviewers to plan the interview^[4]. You will also be given the police contact details to be able to get in touch with them.

Planning for the investigative interview should include agreeing the best approach to ensure that the child and parent(s) or supporter are informed, supported and the child's rights are upheld.

The extent to which you will be involved in the interview planning will vary and depend on the amount of time available to you to work with the child and the interviews prior to the date of the interview. You must always treat the need to safeguard and promote the best interests of the child as a paramount consideration while discharging your professional ChIRP duties to a child. This should be in a manner that safeguards and promotes the wellbeing of the child as a primary consideration.

Where can I find more information on the role of social work and police in relation to investigative interviews?

The Age of Criminal Responsibility (Scotland) Act 2019 Operational Guidance for Social Work and Police published on the Social Work Scotland website outlines the different roles and responsibilities of police and social work.

What information will I receive about the criteria and the necessity to have the interview?

Police Scotland will provide you with this information. Police Scotland have a duty to thoroughly investigate the circumstances and ensure that the incident meets the criteria for an investigative interview.

Investigative interviews under the 2019 Act are only for the most serious cases involving concerns about certain behaviour of a child whilst under the age of 12 and, only when it is considered necessary, in order to properly investigate that behaviour and the circumstances surrounding it including whether a person other than the child has committed an offence. Where an investigative interview is required, the 2019 Act provides a distinct process for this to occur for the purpose of seeking information from a child in relation to an incident which is the subject of a police investigation^[5].

Who will ask the child and parent if they agree to the interview?

The Inter Agency Referral Discussion (IRD) will consider the best approach for seeking agreement from the child and parent. The process for seeking agreement to an investigative interview being conducted will be decided on a case-by-case basis depending on the child's circumstances, legal status and consideration of existing relationships with the child and parent.

It is the responsibility of the police to seek agreement from the child and parent to the holding of an investigative interview. In practice, social work are likely to support the police when speaking to the child and parent. As soon as reasonably practicable after agreement to an investigative interview has been given the police have a duty to provide a written notice to the parent who has given agreement and to the child. The police should explain the information given in the notice (and explain to the child in a way that is appropriate to the child's age and maturity). The information in the notice must include: confirmation that the investigative interview is authorised by agreement given by the child and a parent of the child; that either the child or parent who has given agreement can withdraw agreement at any time (before or after the start of an interview); about other circumstances in which agreement is withdrawn; that agreement being withdrawn will end the investigative interview; and about what else may happen following withdrawal of agreement for example, agreement from another parent of the child or by application for a child interview order.

You should also be given a copy of this notice as soon as reasonably practicable after you have been identified as acting as the ChIRP^[6].

As a ChIRP you should help the child understand their rights in relation to the interview, including where the interview is by agreement, their right to withdraw this agreement at any time, and their right to refuse to answer questions.

Child Interview Orders

The police may apply to the sheriff for a child interview order^[7]. Where a child interview order has been made, the police must, as soon as reasonably practicable after the order is made, provide the child and (so far as practicable) a parent of the child, with a copy of the order and explain the order to the child, ensuring that the explanation is appropriate to their age and maturity^[8]. This is to ensure their understanding of the information and their rights in relation to the order, in particular their right to seek the court's permission to appeal. The police should do this in collaboration with the local authority. You should also be given a copy of the order as soon as reasonably practicable after you have been identified as acting as the ChIRP^[9].

A child who wishes to appeal an order is entitled to legal representation and children's legal aid to help them to do this^[10]. This will be dependent on their capacity to instruct a solicitor and their wish to do so.

As a ChIRP you should help the child understand their rights in relation to the interview, including where the interview is by agreement, their right to withdraw this agreement at any time, and their right to refuse to answer questions.

Whose role is it to communicate with the family?

Specific responsibilities for communicating with the family should be discussed and agreed in the interview planning discussions. You will, wherever practicable, be involved in the planning discussions for the investigative interview.

As soon as reasonably practicable after the plan(s) for the investigative interview are drawn up, the plan(s) must be shared with the child and parent/supporter by the police and social work. So far as practicable, this must involve an explanation of the interview plan(s) to the child in a way that is appropriate to the child's age and maturity. You will also receive a copy of the interview plan(s).

You should arrange to meet with the child, at least once in advance of (and if possible, not immediately prior to) the interview, to build some rapport with the child and to explain your role as a ChIRP in the interview, the purpose of the interview, and the potential consequences. This is the first opportunity to ascertain the views of the child and this should be done so far as is reasonably practicable and in an age-appropriate manner^[11].

Prior to you meeting with the child and family/supporter, the police should have informed the child and family of the details of the incident that is to be investigated and obtained authorisation to the interview taking place.

The investigative interview may not take place without the child being given a copy of the interview plan(s) in advance, and the interview must proceed in accordance with the plan(s) and any directions contained in the child interview order^[12]. Interviewers should ensure that the child and parent/supporter are fully aware of the interview process and that they understand the roles of everyone who is present at the interview.

What information should the ChIRP share with the child prior to investigative interview?

The plan(s) for the investigative interview will be written by police and social work interviewers with input from you, wherever practicable. The police will share the written plan(s) for conducting the interview with the child and their parent(s)/supporter(s) prior to the interview^[13]. This will include details of the purpose of the interview and when and where it will take place. Where the investigative interview is authorised by agreement, the police should also give the child and the parent who gave agreement a written notice about their right to withdraw agreement to the interview at any time (whether before or after the start of the investigative interview)^[14].

This information will also be shared with you, to ensure you are able to provide support and advice to the child. You should arrange to meet with the child, at least once in advance of (and if possible, not immediately prior to) the interview, to build some rapport with the child and to explain your role as a ChIRP in the interview, the purpose of the interview, and the potential consequences. This is the first opportunity to ascertain the views of the child and this should be done so far as is reasonably practicable and in an age-appropriate manner^[15].

You have a responsibility to ensure the child is aware of their rights in relation to the interview, including the child's right to refuse to answer questions^[16].

What if I am concerned about the interview plan(s)?

Your role is to provide advice, support and assistance to the child, and wherever practicable, you will have an active role in the planning for the interview. You can ask questions about the interview with the interviewers or their managers prior to the interview taking place.

Any concerns you have in relation to the interview plan(s) should be raised prior to the interview. Explain your concerns and discuss solutions and suggested changes with the police and social work. A key part of your role is to present the child's views, so it is important that this is fully considered.

All your actions must take account of the child's needs and uphold their rights. You must treat the need to safeguard and promote the best interests of the child as a paramount consideration^[17].

What should I do if I am concerned about the questioning in the investigative interview?

If you have concerns during the interview, consider the best approach for raising them. For example, you may wish to check with the child how they are feeling and suggest a break to enable you to speak with the interviewers and/or the child. The child has the right to a private consultation with you before, or at any time during, the interview^[18]. You must be allowed to be present in the interview if the child wants you to be there. The interview may be conducted only if both the child's supporter and you are in attendance at the location where the interview is being conducted. Furthermore, at least you or the supporter must be present in the room during the interview^[19].

It is important to remember the purpose of an investigative interview under the 2019 Act. Working collaboratively with police and social work to safeguard and promote the wellbeing of the child is a primary consideration for all^[20].

Will there be a protocol for the investigative interview?

Yes, Police Scotland and Social Work Scotland have worked on a Protocol and this is contained within the Operational Guidance (published in August 2023)^[21].

The Protocol for Age of Criminal Responsibility investigative interviews is closely aligned to the Scottish Child Interview Model (SCIM) for Joint Investigative Interviews (JIIs). It includes the specific information to be given to the child to ensure their legal rights are upheld in relation to the interview.

Will the investigative interview be recorded?

Yes. Investigative interviews will be visually recorded^[22] unless there are specific reasons why this may be inappropriate for the individual child, or it is not possible for practical reasons. The use of Visually Recorded Interview (VRI) equipment and the identification of a suitable interviewing facility will be dependent upon local arrangements. This will be discussed (in so far as possible) and planned at the Inter Agency Referral Discussion (IRD).

Will there be a debrief with police and social work after the interview?

The Operational Guidance states that 'consideration should also be given to holding a debrief session with all practitioners, at the conclusion of the Age of Criminal Responsibility investigative interview, to ascertain any learning from the process that can inform future training and improvements. This can involve a debriefing of all professionals, including the ChIRP, to provide support and identify learning and development'^[23].

Prior to the interview it would be good practice to discuss and agree holding a debrief with police and social work after the interview.