Child evidence without oath - CA 1989 s. 96
Child who doesn't understand oath may give evidence if they understand duty to speak truth and have sufficient understanding. Hearsay orders for child welfare.
Subsection (2) applies where a child who is called as a witness in any civil proceedings does not, in the opinion of the court, understand the nature of an oath. The child’s evidence may be heard by the court if, in its opinion— he understands that it is his duty to speak the truth; and he has sufficient understanding to justify his evidence being heard. The Lord Chancellor may , with the concurrence of the Lord Chief Justice, by order make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. An order under subsection (3) may only be made with respect to— civil proceedings in general or such civil proceedings, or class of civil proceedings, as may be prescribed; and evidence in connection with the upbringing, maintenance or welfare of a child. An order under subsection (3)— may, in particular, provide for the admissibility of statements which are made orally or in a prescribed form or which are recorded by any prescribed method of recording; may make different provision for different purposes and in relation to different descriptions of court; and may make such amendments and repeals in any enactment relating to evidence (other than in this Act) as the Lord Chancellor considers necessary or expedient in consequence of the provision made by the order. Subsection (5)(b) is without prejudice to section 104(4). In this section— “ civil proceedings ” means civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply, whether as a matter of law or by agreement of the parties, and references to “ the court ” shall be construed accordingly; “ prescribed ” means prescribed by an order under subsection (3).
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section covers two things. First, if a child is called as a witness in civil proceedings and does not understand the nature of an oath, the court can still hear their evidence if it is satisfied the child understands the duty to speak the truth and has sufficient understanding to justify being heard. Second, the Lord Chancellor (with the Lord Chief Justice's concurrence) may make an order allowing hearsay evidence that would otherwise be inadmissible. Such an order can only be made for civil proceedings (either generally or as prescribed) and for evidence that relates to the upbringing, maintenance or welfare of a child. The order may set out the form of statements or recording methods.
"Civil proceedings" means proceedings before any tribunal where strict rules of evidence apply, whether by law or by agreement. "Prescribed" means set out in an order under subsection (3).
When it applies
- A child in a family court hearing cannot take the oath but promises to tell the truth, and the court decides to hear their account.
- A party in care proceedings wants to introduce a written statement from a child about their living conditions as hearsay evidence.
- A court in a private law children case considers whether a child's video-recorded statement can be admitted under a hearsay order.
- A tribunal other than a court, such as a special educational needs tribunal, applies strict rules of evidence and a child witness is offered.
What this section does not say
- This section does not apply to criminal proceedings, where different rules on child evidence apply.
- It does not specify what counts as 'sufficient understanding' – that is decided by the court on a case-by-case basis.
- It does not automatically allow all hearsay evidence from children; only if an order under subsection (3) has been made and the evidence is about upbringing, maintenance or welfare.
- It does not address the weight or credibility of the child's evidence once admitted.
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This page reproduces the text of CA 1989 s. 96 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.