An affidavit is a written statement, which is sworn under oath (a religious pledge) or affirmation (a non-religious commitment) beforea person authorised to do so by law such as a Notary Public or a Justice of the Peace. Essentially, it is a formal declaration to the effect that the contents of a particular statement are true, and carries the same weight as giving evidence under oath in court. Affidavits are used in many aspects of Family Law and this article will focus on their use in cases involving children.
In actions where there has been an application before the court in terms of Section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities), when asking the court to make orders which are not being defended by the other party, two affidavits dealing with the welfare of the child should be provided. In these cases at least one of the affidavits should be from a person who is neither a parent nor a party to the action. These affidavits should present the court with a full picture of the arrangements for the case of the child adapted to suit the circumstances of the particular case. Affidavits should set out the reasons as to why it is better for the childthat a Section 11 order is made than not.
An affidavit dealing with the arrangements for the care of a child should, where relevant, include theinformation about, amongst other things,the ability of those with whom the child lives to provide proper care for him or her; the relationship between the child and the other members of the household, the children's general appearance, interests, state of health and well-being; the home conditions in which the child lives; the arrangements for contact between the child and any parent (and siblings) not resident within the same household as the child; the school or nursery or other establishment the child attends, and details of child care arrangements during working hours.
The same is true in divorce actions, where the court requires two separate affidavits to be lodged along with the other relevant documentation. The affidavits should set out the proposed future arrangements for the care of the childand they should be able to satisfy the court that the child's interests have been safeguarded. Courts are not allowed to grantadivorce until they are satisfied on this point. Courts now expect that those affidavits will include information not only on the child's residence but also what future contact the child will have with both parents.
Affidavits can be a useful tool to the courts, allowing for your own, considered evidence to be documented. If an affidavit is prepared on your behalf, you should always make sure to check that the affidavit fully and accurately represents your own view point. You must be sure that all the information contained does not in anyway embellish or misrepresent the truth.
The Drummond Miller Family Law Team is extremely experienced in dealing with all aspects of Family Law including financial matters and issues regarding contact and residence of children on separation and divorce. If you would like further information and advice please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.