Are children competent to testify? First of all, we must see what we mean by competency. It is common knowledge that legal competence is acquired at 18 but, nevertheless, 18 is not the only legal age of competence. At times, the legal age of competence is 16 – the age when 16-year-olds are competent to get legally married or be able to terminate education and start full-time employment and it is also the age when children can start doing acts of trade.

But what about court proceedings? Is the child’s evidence admissible? Are children competent to testify or, perhaps, they tend to be moulded to say certain things, even though these things are untrue? At times, even adults are daunted by the fact that they have to go to court, so what about children? Can children endure being examined and cross-examined?

Is there any law that prevents children from testifying? Article 563 of the Code of Organisation and Civil Procedure states that “all persons of sound mind, unless there are objections against their competency, shall be admissible as witnesses”. Therefore, children of sound mind are admissible, unless they are deemed to be incompetent, to testify. In fact, the law goes on to state that “whatever may be the age of a witness whom it intended to produce, his is admissible as such, provided he understands that it is wrong to give false testimony”. So age here really does not come into the equation.

Children, whatever their age, are admissible as witnesses, so long as they understand that it is wrong to lie in court.

Therefore, basically, the litmus test is whether the child knows the difference between right and wrong – very basic and very right. Why very right? Isn’t perhaps the law a tad too wide and, thus, might allow any Jack and Joe to testify?

The court is in search of justice and justice does not discriminate between witnesses.

Would justice be better served not having a key witness from giving evidence just because such witness is deemed to be too young? Obviously not! Justice is better served when any witness can testify and then it will be up to the opposing party to discredit a witness, such as for being non-credible or for being a hostile witness or even for having contradicting evidence.

The onus to prove the incompetency of a witness lies not with the party who is bringing forth the said witness.

This is a fair method because this ensures fair administration of justice.

One might ask: How can a child understand the language used in court? That is, how can one testify if one cannot even understand the question asked? The court will always ensure that a child witness understands what is being said even if that means using non-legal jargon and simple language. After all, the court’s main objective is not to have a witness give a clouded testimony merely because s/he did not understand properly the question asked. The court’s main purpose is to see that justice is done.

To facilitate matters, children are heard behind closed doors, that is, the public is not allowed to hear what they have to say. In family law proceedings, a child advocate is appointed to hear what the child has to say and, in turn, the child advocate gives recommendations with regard, for example, to visitation matters. Sometimes, the judge decides to hear the child alone. In both instances, these take place without the presence of the parents. Sometimes, older children are heard in court, with the parent whom they are going to give evidence against, or both parents, ordered to wait outside until the child testifies so as not to feel the pressure. This is very fair because it disallows any external negative parental influence.

However, unfortunately, this is a very rosy picture and sometimes it is far from the truth. Disallowing parents from being present while the child testifies does not bar any external negative influence. At times, just as the court sitting is over or just as the child has finished from the child advocate, the child is bombarded with questions as to what s/he said, why s/he said such a thing and, lo and behold, if such child said something that should not have been said!

However, having said that, how can anyone control what the parents do and say to the child? Obviously, what the child says in court is not the only evidence that is taken into account. There are instances when children, especially older children, are not influenced so easily – sometimes even younger children are not that influenced. A child usually knows the difference between right and wrong and that makes him/her an admissible witness. However, that does not mean that a child, like any other witness, for that matter, might not want to please one parent more than the other or perhaps a child might fear one parent more than the other, thus resulting in tainted evidence.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.