Evidence of a child in civil procedure

Abstract

The thesis question reflects about those instances where the evidence of children is required in civil procedure – more precisely in general civil proceedings and family proceedings. The work contains an overview of both local and foreign legislation and practices implemented in relation to children’s involvement in the judicial process. The specific provisions and practice relating to evidence and evidentially processes by children has been examined and accessed. The aim behind the research was to pin-point limitations at law and in practice, to determine reasons behind the court’s hesitation in including children into the process and what can be done to improve the situation. The main sources of reference were journals, books, studies and jurisprudence of both local and foreign jurisdictions, the reason being that Maltese legislation and literature in relation to this subject-matter is very limited therefore a comparative exercise was required in order to strengthen the work. It was established that in general civil proceedings, the practice is that when young children are involved, the courts deem hearsay evidence by the child’s parents as sufficient for the purpose. This has been criticized and compared to an instance where the court actually heard children. In relation to family proceedings, the general trend is to hear children’s opinion through court-appointed professionals, and it is then these professionals who produce evidence based on what they would have discussed with the children concerned. Various methods and measures of obtaining evidence have been discussed, however it has been felt that in practice, the general feeling is that children ought to be protected from the court environment. This shows that more work needs to be done such as; promulgate legislative provisions and guidelines in order to standardize practices, and make it easier for the courts to incorporate children into the system.