Anyone who has tried to garner intelligible information about what a teenage child did (much less learnt) at school on any given day will understand that it’s not always easy to obtain useful information from children, let alone obtain information that you might later wish to rely on in any way.
In the context, however, of a rising number of bullying claims within schools and the Reportable Conduct Schemes in New South Wales and Victoria, the need for investigators to build a skill set which includes the ability to successfully interview children is becoming increasingly important.
What then, is the best approach to interviewing children during an investigation in order to obtain their best evidence about an event?
Plan your approach to interviewing children
As with any investigation interview, taking some time to plan your approach to your interview beforehand (even if it’s only 5 minutes) can minimise stress to all interview participants. Consider:
1. Where and when you will interview the child.
A private space with no distractions and where you are unlikely to be interrupted is preferable. Also, consider what time of day you interview the child. The age and maturity of the child might dictate that interviewing in the morning, for example, is best before the activities of the day have worn them out;
2. How you will record the child’s evidence?
In our experience, audio recording is the most accurate method of recording evidence, however, may not be appropriate in some circumstances (for example if you are concerned that it will cause stress to the child, or if the child is too young to be understood on audio recording). The other most effective and efficient way of recording evidence is to have another person (ensuring that it not otherwise involved in the investigation), present to type notes of the interview. In either case, the evidence should be provided to the child (or parent/guardian if that is appropriate) after the interview so that they can confirm the accuracy of that account and provide further evidence should they wish to do so;
3. Speaking to the child’s parents/guardian and/or support person beforehand.
This can provide reassurance that you will be cognisant of the child’s specific needs and emotions and accommodate those needs appropriately during the interview (giving breaks for example, if the child becomes upset).
4. In our experience providing parents with an opportunity to know (if they are not already aware), in very general terms what the interview is about, also allays concerns they may have in relation to their child participating in the process. Providing specific details about the allegation/s, however, is not advisable (if possible) keeping in mind that it is your job is to obtain the untainted evidence of the child about the event. In that context, speaking with the child’s parents or guardians before the interview presents a good opportunity to remind them that their role as support person is to provide emotional support to the child, not to prompt the child or answer on their behalf; and
5. What you need to know from the child.
Ideally, children should not be interviewed more times than is absolutely necessary to obtain their evidence about an alleged event. For that reason alone, it is important that you understand the background to the allegations and child’s role in the investigation – that is, are they are witness or an alleged victim? If there are multiple allegations, question the child only about those allegations you know them to be a witness to.
Structuring the interview itself
Although obtaining information from children in the investigation context can seem tricky, adopting a structured approach is helpful to ensure that you obtain useful and reliable evidence for your investigation. We have found the following approach (based on the US National Institute of Child Health and Human Development Protocol for interviewing children) particularly effective in eliciting reliable evidence from child witnesses or victims.
6. Explain the purpose of the interview and the investigation.
Participating in an investigation process is often daunting for adults and it can be equally so for children. Depending, of course, on the age of the child, it is important that, at the outset of the interview, the investigator:
-
- explains the purpose of the investigation, which is to find out what happened so that the employer can make the right decisions about what happens next;
- emphasises that the child is not in trouble; and
- ensures that the child understands that they should tell you the truth, but that it’s perfectly okay to say “I don’t know” when they are unsure.
7. Build rapport
Take some time to build rapport with the child to make them feel comfortable with you and the interview context. An effective approach is to ask them to tell you about, for example, what they did last weekend. This not only demonstrates that you’re eager to hear what they have to tell you but allows them practice telling a narrative which is, essentially what you’ll be asking them to do when you question them about the allegations themselves.
Questioning children
The key suggestion here is that the investigator should try to keep their questions clear and simple, using language that is appropriate for the age and maturity of the child. Determining the content of the questions, however, can be difficult. Children are inherently suggestible and it is important to avoid asking leading questions, as a recent case in the Fair Work Commission has highlighted.
[su_box title=”Case Note: Unfair dismissal – leading questions in interviews with children” style=”default” box_color=”#333333″ title_color=”#FFFFFF” radius=”3″ class=””]
What were the facts of the case?
Mr Crowley had been employed as a Health and Physical Education teacher at a Catholic Secondary school in Pambula, NSW for 17 years. During November 2017, Mr Crowley took a group of 14 and 15-year-old students on a kayaking practical class at a local river. Mr Crowley was assisted by another teacher during the class.
Mr Crowley lead the group across the river from the northern to the southern shore without incident. In the course of returning to the northern shore one of the kayaks capsized, followed by others, including Mr Crowley’s kayak. Subsequently, the ambulance and the police were called and attended the scene (the Incident). All students were driven home after the Incident except one who was taken to hospital and diagnosed with a concussion. That student was also sent home after being examined.
The school conducted an initial preliminary investigation and determined to engage an external investigator to conduct full investigation. Following this investigation report and a review of those findings, the Archdiocese drew the conclusion that Ms Crowley had engaged in serious misconduct.
Although the external investigator substantiated all seven of the initial allegations investigated, ultimately the Archdiocese found the following four matters proved that Mr Crowley had failed to properly exercise his duty of care to the children:
- Mr Crowley had conducted the activity at a time of deteriorating weather conditions;
- Failed to conduct sufficient safety pre-checks before commencing the activity;
- That Mr Crowley had recklessly led students into a wave and current area that was dangerous, leading to capsizing and having to be assisted by other students, police, ambulance and a Lifeguard; and
- Failing to follow appropriate Catholic Education Policies and Procedures.
Mr Crowley’s employment was terminated on 22 June 2018.
What did the Fair Work Commission say about the investigator’s interviews with the children?
The Commissioner appeared to endorse Mr Crowley’s submission that the external investigator had “led” ,“very heavily”, the evidence of the students, noting that often when a student’s answer appeared support Mr Crowley’s version, or which appeared to “not really follow the line in which the investigator was tracing in his leading questions, the investigator either [shut] down the questioning or steers it off in a different direction” (at [40]).
In light of these observations the Commission noted that it was unsurprising that the students’ evidence in the Commission differed to that which was originally relied on by the Archdiocese. The Commission noted (without criticism) that the students’ recollection of the incident was at times vague and unclear, commenting though that these was unsurprising given the passage of time since the incident, the chaotic and frightening nature of the incident itself and the daunting and intimidating nature of the courtroom experience. In these circumstances, the Commission preferred the evidence of Mr Crowley and the other teacher to the extent there was any inconsistency with the evidence of the students.
The Commission went on to find Mr Crowley’s dismissal “unfair” on a number of grounds, relevantly determining that the matters found substantiated by the Archdiocese were not substantiated on the evidence presented at the Commission. The Commission ordered that Mr Crowley be reinstated to his position.
Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra [2019] FWC 464[/su_box]
In order to avoid the situation arising in Crowley, investigators tend to favour open ended questions. Such questions, however, “What did you do at school today?” often illicit unhelpful answers, “stuff”. When faced with such questions, children are not certain about what details are being requested and therefore their answers often provide no useful detail whatsoever.
An useful approach is to start with an open question about the allegation. For example: “I understand that you said [allegation]. Tell me more about that.”
This then invites the child to provide their narrative about the allegation.
Whilst the child is telling the story, the investigator then notes down further relevant points which then form the basis for follow up questions with the child. For example: “You said [child’s words]. What happened next?”.
This “cued” questioning technique helps:
- ensure that the child understands the investigator is listening to what they are saying; and
- provides them with guidance about the types of details the investigator is seeking.
The key is that the investigator’s questions are directed towards eliciting information relevant to the allegation (i.e. what the investigator needs to find out) and are predicated on the information that the child is providing to the investigator and not their own suspicions about what occurred.
As the Crowley case demonstrates, the investigator should remain curious about the child’s version and continue to ask probing questions about what the child is telling them. This will ensure that the investigator obtains reliable and sufficient evidence on which they can make findings about the alleged events.
