Today’s question comes from:

… a GP from Melbourne’s Stage 4 Lockdown … (although my question is not medically related).

The scenario is one where a mother was offloading her children from their parked car adjacent to a park area for the purposes of fresh air and exercise (well within the 5km radius from home, an open grassy park not a playground), and while she was managing the youngest child (5 years of age), police quite rapidly approached and began questioning her other children (aged 10 years & 15 years) as to their purpose of being there, where they had travelled from, were they in the same family, etc.

My question is whether it is legal permissible (and I suppose appropriate) for police to question minors without the consent of their (present) parents, or indeed before approaching the responsible adult/ parent first.

As for the fact the family were ‘well within the 5km radius from home’ presumably the police don’t know that unless they ask the question. The fact that someone is not committing an offence – because they have a lawful justification or excuse or are simply not acting contrary to the law – does not mean that the police cannot ask what’s going on. If they think someone may be committing an offence they can ask but the answers may put their mind at rest that nothing untoward is happening. So the fact that in the scenario given they were ‘well within the 5km radius from home’ is irrelevant unless the police already knew that.

There are rules about police interviewing children when the child is in police custody on suspicion of having committed a crime and the police are intending to use anything that is said or done as evidence against the child (see Crimes Act 1958 (Vic) s 464E; see also Victoria Legal Aid – Young people and the police)Equally there are formal procedures to be followed when interviewing either an adult or child suspect (see ss 464 to 464JD). But those sections apply when a person is in custody.

Police can ask anyone they like anything they want. The person being asked may be under no obligation to answer but the police can ask. Police have to be able to question children in the absence of parents, there will be situations where children are out and about without a parent or guardian and police want to ask them questions whether those are about their own welfare or whether they saw something related to a crime police are investigating.

I won’t say what’s appropriate as every case is different, but it is legally permissible  ‘for police to question minors [except when the child is in police custody or where the police have formed a view that they have sufficient evidence to arrest the child] without the consent of their (present) parents, or indeed before approaching the responsible adult/ parent first’.