Children Act 1989, section 96

Evidence given by, or with respect to, children

Part XII Miscellaneous and General

(1)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.

(2)The child’s evidence may be heard by the court if, in its opinion—

(a)he understands that it is his duty to speak the truth; and

(b)he has sufficient understanding to justify his evidence being heard.

(3)The Lord Chancellor may [F976, with the concurrence of the Lord Chief Justice,F976] by order make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay.

(4)An order under subsection (3) may only be made with respect to—

(a)civil proceedings in general or such civil proceedings, or class of civil proceedings, as may be prescribed; and

(b)evidence in connection with the upbringing, maintenance or welfare of a child.

(5)An order under subsection (3)—

(a)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;

(b)may make different provision for different purposes and in relation to different descriptions of court; and

(c)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.

(6)Subsection (5)(b) is without prejudice to section 104(4).

(7)In this section—

  • [F977 “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; F977]

  • “prescribed” means prescribed by an order under subsection (3).

Definitions used in section 96 5

child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
prescribed

“prescribed” means prescribed by regulations made under this Act;

Defined in s.105(1) · see it in the full Act
upbringing

“upbringing”, in relation to any child, includes the care of the child but not his maintenance;

Defined in s.105(1) · see it in the full Act

Cases considering section 96 15

J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction), Re

[2024] EWHC 1395 (Fam) · 29 February 2024

Makes evidence given in connection with a child’s welfare admissible notwithstanding its hearsay character. The court relied on it when considering local authority, police and witness evidence. (see para [54])

LKM v NPM

[2022] EWHC 140 (Fam) · 15 July 2022

The judgment applies the provision, through the associated hearsay order, to confirm that evidence connected with the welfare of a child is admissible despite its hearsay character; weight remains a matter for the court (see para [28]).

K (Threshold - Cocaine Ingestion - Failure to give evidence)

[2020] EWHC 2502 (Fam) · 29 September 2020

Confirms the admissibility of evidence given in connection with a child’s welfare notwithstanding its hearsay character. The court retains responsibility for assessing its appropriate weight (see para [40]).

What each judgment says about section 96 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F976Words in s. 96(3) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), s. 15(1), Sch. 4 para. 207; S.I. 2006/1014, art. 2(a), Sch. 1 para. 11(r)
  2. F977Definition in s. 96(7) substituted (31.1.1997) by 1995 c. 38, s. 15(1), Sch. 1 para.16(with ss. 1(3), 6(4)(5), 14); S.I. 1996/3217, art.2

Commencement

  1. I80S. 96 wholly in force at 14.10.1991; s. 96(3)-(7) in force at 16.11.1989 see s. 108(2); s. 96(1)(2) in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)