Investigations of misconduct within schools, sports organizations, churches, and community or recreational organizations or programs can involve children as parties and/or witnesses. Any investigation that involves children presents a challenge for investigators for a variety of reasons. On a human level, the vulnerability of a possible child victim of misconduct is taxing to deal with emotionally and psychologically. And the investigator bears the added burden of trying to ensure that no additional harm is visited on the child through the investigation process. In considering the role of an investigator as someone who must collect evidence from a child, the challenge for the investigator is to find an approach that will enable the child to provide the best evidence they can. The additional challenge here is that there are limited resources available to guide investigations that involve child parties or witnesses.
Below we look at one highly regarded resource for investigators who are interviewing children that was developed in the United States as well as three questions to ask before the interview.
Development of the NICHD Investigative Interview Protocol
Historically, a commonly-held perception was “that children were incapable of offering sound eyewitness testimony because, relative to adults, they have weak memories, are highly suggestible, and have incomplete language development.”¹ Scholarly research into the investigation of high-profile child sexual abuse cases emerged in the late 1980s. In response to this growing body of research, the National Institute of Child Health and Human Development (NICHD), a US-based research agency established by the US Congress in 1962, developed the NICHD Investigative Interview Protocol in 2000. The principles behind this Protocol came from the research which revealed that the success of an interview with a child depends on “the interviewer’s ability to elicit information and the child’s willingness and ability to express it, rather than the child’s ability to remember it.”² Following further refinement and field-testing, this Protocol is now recognized globally as a leading approach.
There are three phases to the Protocol – the introductory, rapport-building and substantive phases.
In the introductory phase, “interviewers are typically urged to explain their roles, the purpose of the interview, and the “ground rules” (for example, ask children to limit themselves to descriptions of events “that really happened” to them and to correct the interviewer, request explanations or clarification, and acknowledge ignorance, as necessary).”³
In the rapport-building phase, which is divided into two sections, the interviewer should first “create a relaxed, supportive environment for children and … [i]n the second section, [the investigator should prompt the child] to describe a recently experienced neutral event in detail. This ’training’ is designed to familiarize children with the open-ended investigative strategies and techniques used in the substantive phase.”4
In the final substantive phase, the investigator focuses “on open-ended recall prompts and recognition prompts (“Did he touch you?”).”5 As examples of “open-ended recall prompts,” the Protocol suggests asking, “Then what happened?” or “Tell me more about that.” The Protocol recommends avoiding, as much as possible, “option-posing, leading or suggestive questions.”6
More information about the NICHD Investigative Interview protocol can be found here: http://nichdprotocol.com/.
Developed from a robust, research-based process, the NICHD Investigative Interview Protocol offers a guideline for investigators in developing their interview plan for a child party or witness. However, there are three process questions that an investigator should consider before interviewing a child.
Before Interviewing a Child Party/Witness:
1. Is there a duty to report?
Before an organization acts in response to a complaint, it should consider whether there is a duty to report. Where a complaint potentially involves abuse of any kind or neglect in relation to a minor child, under provincial laws, the organization has a duty to report.
In Ontario, the duty to report is contained in Section 125 of the 2018 Child, Youth and Family Services Act7 . Section 125(1) states that: “Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall immediately report the suspicion and the information on which it is based to a [Children’s Aid] society…” The conduct included under this section encompasses various forms of physical, sexual and emotional harm and/or abuse and neglect. Neglect occurs when there is a failure to provide for needs or to protect from harm or potential harm. The penalty, under section 125(9), for failing to “report” is “a fine of not more than $5,000”.
2. Has informed consent and/or assent to speak with the child been obtained?
The issue of seeking informed consent and/or assent from children and/or their parents/legal guardians and how best to do this in relation to investigations is somewhat complicated. An investigator is responsible for understanding the relevant provincial/territorial rules regarding age of majority and the rights of children to provide consent or assent, as well as accepted best practices related to ensuring that consent and/or assent is provided on an informed basis.
The basic difference between consent and assent is that an individual can provide consent when he/she has legal status to do so, which is usually determined by age, and assent is the agreement to participate in an activity by someone not able to give legal consent.
Provincial/territorial legislation determines the age of majority, or the age at which an individual is considered an adult, and it varies between 18 and 19. Adults are presumed to have legal status to provide consent (subject to exceptions). Nevertheless, children have rights to make certain decisions, independent of their parents or legal guardians, at specified age thresholds, including providing consent or assent to participate in an interview, and these thresholds vary between Canadian jurisdictions.
In terms of best practices in relation to seeking informed consent or assent, a potential source of guidance for an investigator is the academic and health research sector.8 Most post-secondary and medical research institutions have developed detailed policies, protocols and templates that guide researchers on what is required for consent or assent to be provided on an informed basis. The authority for ethics in academic and medical research practice and procedures is the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans – TCPS 2 (2018).9
3. Has the interview plan been adapted to accommodate a child?
The NICHD Protocol for interviewing minor children is one potential tool in the toolbox of an experienced investigator. The practical reality is that an interview with any witness, including a child witness, may not proceed according to plan. However, when preparing the investigation plan, taking into account the needs of the particular child to be interviewed will help both the child and the investigator.
The list below is not exhaustive. Rather, it highlights some of the more likely issues that could arise in an interview with a child witness:
(a) Select an interview site that is child-friendly and perhaps less formal than a boardroom.
(b) Be prepared to schedule a shorter interview time. While not always desirable, the interview may need to be segmented.
(c) Anticipate frequent breaks.
(d) Encourage the child and/or his/her parent/legal guardian to bring water and snacks.
(e) Prepare questions using plain and age-appropriate language.
(f) Set the ground rule that the confidentiality of the interview is required but accept that certain children are likely to check their smartphones.
(g) If a parent or legal guardian is present, ensure that answers are obtained from the child and not them.
Interviewing children requires planning and care to create an experience that enables them to fully participate. It also enables the investigator to gather the best evidence they can to support the investigation process.