Expert Witness Journal Dec 24 - Journal - Page 72
creasingly child-centric approach. Even a relatively
young child's views are relevant and may have a
bearing on the outcome – although Lady Carmichael
did note that their views would not be determinative.
Practitioners - take note
In this case, Lady Carmichael was able to reach a
decision without relying on the evidence of the particular witnesses, and so did not require to consider
what weight to give to the affidavits, but it is clear that
this could be an issue in different circumstances. The
drafting of affidavits in the appropriate manner was
also raised in another recent decision Lady Carmichael
in M v A ([2024] CSOH 38 @para 97). Family lawyers
drafting affidavits, and in particular notarising affidavits in languages other than English, should familiarise themselves with the Practice Note provisions.
An issue of practice arose in this case regarding the
treatment of affidavits lodged by the respondent.
Paragraph 15 of Court of Session Practice Note No 1
of 2018 sets out how affidavits sworn in a language
other than English are to be prepared. In particular,
this sets out that they must contain information of the
circumstances in which they were drafted and translated, and both the original document and the translation be provided. Certain affidavits lodged in this
case did not comply with the Practice Note.
brodies.com/internationalchildabduction
Authors
Victoria Varty - Senior Associate
Georgia Wallace - Solicitor
Lady Carmichael observed that: "The procedure described
in the Practice Note is aimed at providing transparency where
an affidavit is obtained from a person whose first language is
not English. It enables the witness to read in her own language exactly what she is being asked to swear or affirm is the
truth. It provides an auditable trail, because the content of
both the foreign language and English language documents
can be checked, and one cross-checked against the other. If the
witness does not have a document in her own language, she
will be deprived of the opportunity to read over the draft herself and identify any inaccuracies before swearing or affirming. These are all important safeguards…The procedure in
the Practice Note should be followed."
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EXPERT WITNESS JOURNAL
70
DECEMBER 2024
