Court/Judicial body: High Court of Tuvalu (Criminal Jurisdiction)
Date: 12 August 2002 CRC
Provisions: Article 1: Definition of a child Article 40: Administration of juvenile justice
Domestic provisions: Interpretation and General Provisions Act, section 17: International Obligations Custody of Children Act, section 2: Interpretation Tuvalu Constitution, sections 17(2)(a): Personal liberty, and 22(3): Protection of law
Background: A 17-year-old was arrested for offences alleged to have been committed over a period of time since he was 16. He was held in custody and interviewed by police without having been advised of his right to have a parent or guardian present or his right to consult a lawyer. He was charged with the offences and set to face trial. The child applied to the High Court for an order quashing his confessions due to violations of the Tuvalu Constitution and Article 40 of the CRC. Juvenile justice; right to have a parent, guardian or lawyer present during police interrogation. The High Court found that, although the police were obliged to advise the child of his right to have a parent, guardian or lawyer present before interrogating him, it refused the application and returned the matter for decision by the trial court in accordance with the principles set forth below.
Court reasoning: Tuvalu is a signatory to the CRC. Under Tuvalu law, the courts should prefer an interpretation of domestic law that is consistent with international treaties, as opposed to an interpretation that is not. Tuvalu law is consistent with the CRC in defining a child as a person under 18 years of age. The Tuvalu Constitution alone does not grant a detained child the right to have a parent, guardian, or lawyer present during an interrogation. However, when interpreted consistently with and in conjunction with the CRC, a child does have the right to have a parent or guardian present unless this is impractical. Where the police proceed with an interview on the basis that it is impractical to have the parents or guardian present, it will be a matter for the trial court to determine whether that was a proper decision on the facts of the particular case. The test for considering the admissibility of a confession is whether the prosecution has proved beyond reasonable doubt that it was made voluntarily. If it was not, it should be excluded. If it was, the court still has a discretion to exclude it if it considers that the circumstances in which it was taken would make it unfair to admit it. The police must advise the child of their right to have a parent, guardian or lawyer present and must take any reasonable steps to secure such attendance before taking any step that could result in the child making a statement against their interests. If the court is not satisfied that the police advised the child of their right to have a parent, guardian or lawyer present but went ahead regardless, any statements should be excluded. The Court, however, denied the application as premature because this is a matter to be determined by the trial court.
Excerpt citing CRC and other relevant human rights There is no dispute that Tuvalu is a State Party to the Convention and by the provisions of section 17 of our Interpretation Act, a construction of a written law which is consistent with the international treaty obligations of Tuvalu is to be preferred to a construction which is not. In terms of the definition of a child, the Convention accords with our law. In the Custody of Children Act for example, ‘child’ is defined as any person under the age of 18 years and Article 1 of the Convention provides a similar definition. . . . It seems to me that, as they stand, neither of these provisions [in the Tuvalu Constitution] establishes either the rights claimed or any obligation on the police to advise anyone in their custody of these rights before he is interviewed. Mr Duckworth, acknowledges that and therefore points to the provisions of Article 40 of the Convention which provides in paragraph 2(b): “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: . . . (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have the legal or other appropriate assistance in the preparation and presentation of his or her defence . . .” . . . I am satisfied that the Constitution read in accordance with the terms of the Convention gives any child in the custody of the police the right to have a parent or guardian present unless that is impractical. The perception that a child needs special protection arises from the immaturity and vulnerability of children. That is the foundation upon which the Convention was constructed. In the hostile and stressful situation of an accusation of a criminal offence, it is accepted a child needs the mature guidance and reassurance of someone who clearly has its interests at heart. To suggest that it should know that it has such a right and would have the courage or maturity to demand it runs counter to the fundamental philosophy of the Convention. I consider it a logical and proper conclusion that the police are obliged to advise any child of the right to have a parent, guardian or legal adviser present and to take any reasonable steps to secure such attendance before taking any step that could result in the child making a statement against its interests.
CRIN comments: CRIN believes this decision is consistent with the CRC. As cited by the Court, a child alleged to have committed an offence is end to certain fair trial guarantees under Article 40(2)(b), including the right to be informed of the charges against them and, if appropriate, through their parents or legal guardians, as well as the right to legal assistance. Furthermore, in its General Comment No. 10 on children’s rights in juvenile justice, the Committee on the Rights of the Child recommends that States explicitly provide by law for the maximum possible involvement of parents or legal guardians in the proceedings against the child, and that, to promote parental involvement, parents must be notified of the apprehension of their child as soon as possible.
Citation:  TVHC 1; Case No 01 of 2002 (12 August 2002)
Link to full judgement: http://www.paclii.org/tv/cases/TVHC/2002/1.html