The ABC has reported that a NSW Judge has slammed the NSW Government for their school interrogation protocols after a school principal followed a NSW Department of Education protocol to interrogate a special needs student regarding a peer rape.

The facts

The case file has been suppressed but Judge Colefax's thoughts on the proceedings have been made public on the NSW Caselaw website. The below is a summary of the facts from that website:

• A child (MG), who was enrolled in a learning support stream in a NSW high school, was interrogated by a school principal regarding a peer rape and the principal passed the information onto the police.
• The child was interviewed, as a suspect, by the principal without a parent present and without providing him with the opportunity to obtain legal advice.
• The principal outlined that he was following ‘procedural protocol promulgated by the Department of Education,’ which he implemented.
• The child had an intellectual impairment and, when interrogated by the police, his father was present. However, the parent had limited English to understand what was going on and neither child nor parent understood the bail conditions.

The school protocol was not submitted as evidence to the Court and the protocol does not appear to be publicly available on the NSW Department of Education website.

The fall out

In his Judgement, District Court Judge Colefax noted that “there appears to be a protocol in place in NSW schools which permits not only interrogation of children without adults present, but the interrogation of children with learning difficulties – the result of which are made available to the Police.” Judge Colefax went on to point out that any information gleaned by the principal would have, in all probability, been rejected by the Court.

Judge Colefax undertook a Special Hearing within the meaning of section 21 (3) of the Mental Health (Forensic Provisions) Act 1990 (NSW) and the accused child (MG) was found to be not guilty on the grounds of mental illness.

In summary Judge Colefax commented, ‘There is nothing more that the Court can do, apart from highlighting these issues and making them public in the hope that appropriate authorities will address them.’

The issue for schools

Children with a Disability Australia Chief Executive, Stephanie Gotlib said, "We have had a lot of attention to this issue around institutional responses to child sexual abuse and someone in that position should know that is just not good practice. This is a really sad case and both children need support and assistance involved and so we really need to start talking about it and look at how we can do better."

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), all mandatory reporters (including teachers and principals) are required by law to report abuse and neglect to the Department of Family and Community Services, where they suspect, on reasonable grounds, that a child (a person under the age of 16), or a young person (aged 16-17 years) is at risk of significant harm.

In every jurisdiction, there is a requirement for teachers to make a mandatory report if there is a belief, on reasonable grounds, of sexual abuse of a child. Although the wording differs slightly between the states and territories, the overall objective is the same i.e. child protection. The issue in this case is whether the Principal needed to 'interrogate' the child in order to obtain sufficient information to make a report.

If a child discloses abuse or grooming, a common understanding for educators is that you are not required to investigate the allegation, however you may ask appropriate, non-judgmental questions to gain further information so as to form a reasonable belief of abuse. So why would there be an ‘interrogation’ of the alleged perpetrator in order to pass the information on to the police?

Schools are places where children are educated and cared for. Teachers are skilled in both of these highly specific fields. They are generally not trained or skilled in conducting investigative interviews for possible criminal allegations - that is the role of the Police.

In response to the ruling, the NSW Department of Education released a statement on the case:

"Schools have a duty of care to ensure timely initial fact-finding enquiries are made whenever inappropriate behaviour is reported," a spokesman said. "Where teachers become aware that a student may have committed a crime, they are advised to tell the student that they have a responsibility to report it. "As soon as staff suspect criminal behaviour may have taken place, they cease their enquiries and refer the matter to police, including fulfilling their responsibility to provide police with any information they have which may be relevant. "Where schools are contemplating disciplinary action against students with certain disabilities, they are advised to involve parents in the associated interviews."

From its statement, the Department seems to defend the Principal, but also suggests that the level of questioning needs to be appropriate and kept to a minimum (once the legal threshold has been met).