Failure to challenge affidavit evidence can affect case

Where the opportunity to cross-examine on evidence presented by affidavit had been declined by the petitioners, the party seeking to challenge the evidence of the witness is going to have difficulty persuading the court to prefer contradictory evidence.

In East Lothian Council, Petitioners [2019] SC EDIN 5; [2018] 12 WLUK 617 the court had been deprived of the opportunity of hearing from the witness at all. The contradictory evidence lacked sufficient weight to undermine that provided by an expert by way of affidavit. The point was also taken that if unchallenged affidavit evidence could be attacked, this risked generally undermining the use of affidavits in family proceedings.

Notwithstanding, the court granted a permanence order with authority to adopt, confirming that part of the holistic analysis of the serious detriment test included the likely effect on a child of removal from a stable environment.