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40 1997

CHILDREN ACT, 1997

PART III

EVIDENCE OF CHILDREN

Interpretation.

19. —(1) In this Part, unless the context otherwise requires—

child” means a person who is not of full age;

statement” means any representation of fact or opinion however made;

video-recorded” means recorded on any medium (including a film) from which a moving image may by any means be produced, and includes the accompanying soundtrack, if any, and “video-recording” has a corresponding meaning.

(2) Where the age of a person at any time is material for the purpose of any proceedings to which this Part applies, his or her age at that time shall, for the purposes of such proceedings, be deemed, unless the contrary is proved, to be or to have been that which appears to the court to be his or her age at that time.

Application of Part III .

20. —This Part applies to—

(a) civil proceedings before any court, commenced after the commencement of this Part, concerning the welfare of a child; or

(b) with the necessary modifications, in the same manner as it applies to a child, to civil proceedings before any court, commenced after the commencement of this Part, concerning the welfare of a person who is of full age but who has a mental disability to such an extent that it is not reasonably possible for the person to live independently.

Evidence through television link.

21. —(1) In any proceedings to which this Part applies a child may, with the leave of the court, give evidence (whether from within or outside the State) through a live television link.

(2) Evidence given under subsection (1) shall be video-recorded.

(3) Any child who, in giving evidence under subsection (1) from outside the State, makes a statement material in the proceedings which the child knows to be false or does not believe to be true shall be guilty of perjury, or, if section 28 applies, shall be guilty of an offence specified in subsection (2) of that section.

(4) Proceedings for an offence under subsection (3) may be taken, and the offence may, for the purposes of the jurisdiction of the court, be treated as having been committed, in any place in the State.

(5) Where evidence is given by a child under subsection (1) that any person was known to him or her before the date of commencement of the proceedings, the child shall not be required to identify the person during the course of those proceedings, unless the court directs otherwise.

Evidence through intermediary.

22. —(1) Where in proceedings to which this Part applies the evidence of a child is being given or to be given through a live television link, the court may, of its own motion or on the application of a party to the proceedings, if satisfied that, having regard to the age or mental condition of the child, any questions to be put to the child should be put through an intermediary, direct that any such question be so put.

(2) Questions put to a child through an intermediary under this section shall be either in the words used by the questioner or in words that convey to the child, in a way that is appropriate to his or her age or mental condition, the meaning of the questions being asked.

(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.

Admissibility of hearsay evidence.

23. —(1) Subject to subsection (2), a statement made by a child shall be admissible as evidence of any fact therein of which direct oral evidence would be admissible in any proceeding to which this Part applies, notwithstanding any rule of law relating to hearsay, where the court considers that—

(a) the child is unable to give evidence by reason of age, or

(b) the giving of oral evidence by the child, either in person or under section 21 , would not be in the interest of the welfare of the child.

(2) (a) Any statement referred to in subsection (1) or any part thereof shall not be admitted in evidence if the court is of the opinion that, in the interests of justice, the statement or that part of the statement ought not to be so admitted.

(b) In considering whether the statement or any part of the statement ought to be admitted, the court shall have regard to all the circumstances, including any risk that the admission will result in unfairness to any of the parties to the proceedings.

(3) A party proposing to adduce evidence admissible in proceedings to which this Part applies by virtue of subsection (1), shall give to the other party or parties to the proceedings—

(a) such notice, if any, of that fact, and

(b) such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling such party or parties to deal with any matter arising from its being hearsay.

(4) Subsection (3) shall not apply where the parties concerned agree that it should not apply.

Weight of hearsay evidence.

24. —(1) In estimating the weight, if any, to be attached to any statement admitted in evidence pursuant to section 23 , regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(2) Regard may be had, in particular, as to whether—

(a) the original statement was made contemporaneously with the occurrence or existence of the matters stated,

(b) the evidence involves multiple hearsay,

(c) any person involved has any motive to conceal or misrepresent matters,

(d) the original statement was an edited account or was made in collaboration with another for a particular purpose, and

(e) the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Evidence as to credibility.

25 .—Where information is given in a statement admitted in evidence pursuant to section 23

(a) any evidence which, if the child who originally supplied the information had been called as a witness, would have been admissible as relevant to his or her credibility as a witness shall be admissible for that purpose,

(b) evidence may, with the leave of the court, be given of any matter which, if that child had been called as a witness, could have been put to him or her in cross-examination as relevant to his or her credibility as a witness but of which evidence could not have been adduced by the cross-examining party, and

(c) evidence tending to prove that the child, whether before or after supplying the information, made (whether orally or not) a statement which is inconsistent with it shall, if not already admissible, be admissible for the purpose of showing that the witness has contradicted himself or herself.

Copies of documents in evidence.

26. —(1) Where information contained in a document is admissible in evidence in proceedings to which this Part applies, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve.

(2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy was produced or any intermediate copy was made.

(3) In this section “document” includes a sound recording and a video-recording.

Transfer of proceedings.

27. —Where in proceedings to which this Part applies the court is of the opinion that it is desirable that evidence be taken by live television link or by means of a video-recording and facilities for doing so are not available, it may, by order, transfer the proceedings to a court where those facilities are available and, where such an order is made, the jurisdiction of the court to which the proceedings have been transferred may be exercised—

(a) in the case of the Circuit Court, by the judge of the circuit concerned, and

(b) in the case of the District Court, by the judge of that court for the time being assigned to the district court district concerned.

Oath or affirmation not necessary for child witnesses.

28. —(1) Notwithstanding any rule of law, in any civil proceedings (whether or not they are proceedings to which this Part applies) the evidence of a child who has not attained the age of 14 years may be received otherwise than on oath or affirmation if the court is satisfied that the child is capable of giving an intelligible account of events which are relevant to the proceedings.

(2) Any child whose evidence is received in accordance with subsection (1) and who makes a statement material in the proceedings concerned which the child knows to be false or does not believe to be true, shall be guilty of an offence and on conviction shall be liable to be dealt with as if guilty of perjury.

(3) Subsection (1) shall apply to a person with mental disability who has attained the age of 14 years as it applies to a child who has not attained that age.

(4) Unsworn evidence received by virtue of this section may corroborate evidence (sworn or unsworn) given by any other person.