the court will not usually require children to be witnesses in a court case.
The only time that there will be child witnesses in a case is if the court deems that the testimony would be for the best interests of the child. Thus, a child can be a witness if it is with leave of court.
It must first be proven to the satisfaction of the court that the child’s testimony is essential to the resolution of the case and foremost of all, it would be in the child’s best interest (s.60D Family Law Act 1975).
The Court is not prohibited from hearing a child’s wishes or views especially if the case involves a parenting issue. However, the procedure is to usually go through the preparation of family reports, an Independent children’s lawyer or appointed expert. It is usually the Family Consultant who talks or interviews the child whose views or wishes will then be included in the Family Report that is submitted to the Court.
It is through the family report that the court will be enlightened on what the child wants with respect to matters that concern him like where he wants to live or with whom. The same thing applies if there is an Independent children’s lawyer. It will be the lawyer who will be representing to the Court the child’s wishes. An appointed expert is usually a child psychologist or guidance counsellor.
While Courts are reluctant to involve children in family law cases, interviewing children is an option that is available to a judicial officer though it is rarely exercised. The Judicial Officer can speak to a child in chambers or in private with the consent of the child’s representative. The discussion between the child and the judicial officer in chambers will be inadmissible in court but may be given weight during the decision making.
In resolving a case, courts will not be dictated by a child’s views. Rather, the courts will listen to a child’s views if proper and take that into account in making a decision. The weight that is given to a child’s testimony or views will depend on his age and maturity.
There are instances when it is the child who is the petitioner in the case. The Family Law Act 1976 provides that a child may ask for a parenting order from the court. In these cases it is inevitable that the child will give evidence before the Court. It is admitted that children do not easily understand legal jargon. The line of questioning should be made suitable age, maturity and level of understanding.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.