The use of intimate images in private law family proceedings is all too common. Mrs Justice Knowles, sitting in the High Court, gave guidance on this issue and made suggestions as to how such images should be admitted into and managed within private law children proceedings in a judgment handed down on 29.4.22. The case is Re M: Private Law Children Proceedings: Case Management: Intimate Images [2022] EWHC 986 (Fam).
The judgment addresses a variety of case management issues prior to the rehearing of a fact finding hearing within private law proceedings concerning a three year old girl, M. The original fact finding hearing was successfully appealed by the mother, and a rehearing was ordered.
The background to the case was that the father had applied for a child arrangements (contact) order for the care of the child, M, to be shared between the parents. The mother wrongfully removed the child M to Romania, and was ordered by the court to return the child to the jurisdiction (England). The mother did so, and then applied for the court’s permission to remove the child from the UK to live with the mother in Romania. The mother’s case was that the father had engaged in serious sexual assaults on her, had an obsessive sexual compulsion/disorder, which he was unable or unwilling to control, had desires towards young girls, and had used controlling, manipulative and intimidating behaviour towards her throughout their relationship. A fact finding hearing into the parties’ allegations against each other was held. The mother appealed the outcome of this hearing and was successful.
The mother appealed on two grounds: Firstly, there was a duty on the court to ensure that a party’s vulnerability was addressed by the use of ‘participation directions’ to enable that party to give their best evidence to the court. In this case the court failed to hold a ground rules hearing and make any participation directions, when it knew or ought to have known the mother had distinct frailties which ‘cried out’ for such a hearing.
The second ground was that the judge had given insufficient consideration to the possibility that the mother may have been over-dependent on the relationship with the father or vulnerable in that relationship. The judge’s analysis of that issue was found to be limited. The appeal was allowed and a rehearing was ordered.
At a preliminary hearing, before the rehearing took place, expert evidence was heard that the mother had complex post-traumatic stress disorder (PTSD) and a depressive disorder, resulting from the first fact finding hearing, when she was cross-examined on sexually explicit videos and photographs. With regard to the rehearing, the expert said that the inclusion of sexually explicit material was likely to have a compounding traumatic impact on the mother, and that the exposure to the intimate images and videos or other trauma related material was likely to impact on her ability to give her best oral evidence. The expert said the mother’s condition would adversely affect her ability to engage in the current proceedings, and recommended that the mother should have the benefit of a court intermediary and a consistent interpreter, to assist her during the rehearing. The expert also recommended that the number of people who had access to the explicit material and question the mother about it should be strictly limited to the judge and one advocate.
The Law
The Family Procedure Rules 2010 (the “FPR”) contain the procedural means by which the family court deals with cases justly, having regard to the welfare issues involved, often referred to as the overriding objective.
FPR Rule 1.1(2) states: “Dealing with a case justly includes, so far as practicable –
a) ensuring that it is dealt with expeditiously and fairly;
b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
c) ensuring that the parties are on an equal footing;
d) saving expense; and
e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
In order to give effect to the overriding objective, FPR Rule 22.1 gives the court power to control the evidence the parties may adduce in support of their respective cases.
FPR Rule 22.1(1) states that the court may control the evidence by giving directions as to
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
Ultimately, the court has the power to exclude evidence that would otherwise be admissible (FPR Rule 22.1(2)) and the power to limit cross-examination (FPR Rule 22.1(4)).
In addition to these general case management powers are the requirements of Practice Direction 12J, which applies in any private law proceedings where allegations of domestic abuse have been made or admitted. Where the court has determined that a fact finding hearing is necessary to determine disputed allegations, paragraph 19 of PD12J directs the court to consider a variety of matters in order to ensure a fair and effective hearing. Of relevance to the issues in this case, those matters include:
A) identifying the key facts in dispute (paragraph 19(a));
B) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse (paragraph 19(d)); and
C) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence (paragraph 19(j)).
The Court of Appeal in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 offered further guidance to judges making what are often difficult case management decisions in private law children proceedings where domestic abuse is alleged. Paragraph 58 states as follows:
a) PD12J is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements orders and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;
b) PD12J paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic-abuse related activity
c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;
d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.”
In Re H-N, the Court of Appeal suggested that, where a pattern of coercive and controlling behaviour was alleged, that assertion should be the primary issue for determination at the fact finding hearing. Additionally, “any other more specific, factual allegations should be selected for trial because of their potential probative relevance to that alleged pattern of behaviour and not otherwise unless any particular allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape)” (paragraph 59).
The Court of Appeal also said in Re H-N at paragraph 74 that:
“The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear cut. That is particularly so when the judge in the Family court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard the procedural manner in which the hearing is conducted and, in particular, the scope of cross-examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition on family judges adopting criminal concepts in determining the substantive allegation.
The court in Re H-N did not address either the admission of intimate images into private law proceedings or whether an individual’s sexual history was relevant to the determination of any specific allegations of sexual abuse.
Mrs Justice Knowles in the current case said that the Domestic Abuse Act 2021, which took effect from 31.1.22, and FPR Part 3A together with Practice Direction 3AA have been extensively revised to incorporate the relevant provisions of that Act which have a bearing on the manner in which the family court should make provision for (a) the involvement of an alleged victim of domestic abuse in the proceedings and (b) receiving the evidence of that person.
FPR Part 3A concerns vulnerable persons and their participation and evidence in family proceedings. Rule 3A.1 defines a ‘participation direction’ as either a “general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings” and “a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8”.
Rule 3A.2A is headed “Court’s duty to consider making participation directions: victims of domestic abuse” and states as follows.
(1) Subject to paragraph (2), where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –
a) the quality of the party’s or witness’s evidence;
b) in relation to a party, their participation in the proceedings.
(2) The party or witness concerned can request that the assumption set out in paragraph (1) does not apply to them if they do not wish it to.
(3) Where the assumption set out in paragraph (1) applies, the court must consider whether it is necessary to make one or more participation directions.
FPR Rule 3A.7 sets out a list of matters to which the court must give consideration when deciding to make one or more participation directions. These are as follows:
a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of (i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or (ii) any members of the family of the party or witness;
b) whether the party or witness (i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning; (ii) has a physical disability or suffers from a physical disorder; or (iii) is undergoing medical treatment;
c) the nature and extent of the information before the court;
d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
e) whether a matter is contentious;
f) the age, maturity and understanding of the party or witness;
g) the social and cultural background and ethnic origins of the party or witness;
h) the domestic circumstances and religious beliefs of the party or witness;
i) any questions which the court is putting or causing to be put to a witness in accordance with section 31(G) of the 1984 Act;
j) any characteristic of the party or witness which is relevant to the participation direction which may be made;
k) whether any measure is available to the court;
l) the costs of any available measure; and
m) any other matter set out in Practice Direction 3AA.
The measures referred to are listed in Rule 3A.8 and include those preventing a party or witness from seeing another party or witness, provision for a party or witness to participate in the proceedings with the assistance of an intermediary, and provision for a party or witness to be questioned in court with the assistance of an intermediary.
Practice Direction 3AA entitled “Vulnerable Persons: Participation in Proceedings and Giving Evidence” sets out in paragraph 1.2 the procedure and practice to be followed “to achieve a fair hearing by providing for appropriate measures to be put in place to ensure that the participation of parties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability”.
Significantly, paragraph 1.4 requires all parties and their representatives to work with the court and each other “to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability as defined with reference to the circumstances of each person and to the nature of the proceedings”.
Paragraph 2.2 makes plain that, as provided for by FPR Rule 3A.2A (where it is stated that a party or witness is or is at risk of being a victim of domestic abuse carried out by certain third parties), it is to be automatically assumed for the purposes of FPR Part 3A that a party or witness is vulnerable where they are or are at risk of being a victim of domestic abuse. For such parties and witnesses, the court should proceed directly to a consideration of whether a participation direction is necessary.
Paragraphs 5.2 to 5.7 of Practice Direction 3AA make provision for ground rules hearings prior to any hearing at which evidence is to be heard. The purpose of such hearings is to consider any necessary participation directions about the conduct of the advocates and the parties in respect of the evidence of a vulnerable person, and to put in place any necessary support for that person. The ground rules hearing should address the matters set out in paragraphs 5.3 to 5.7, but does not need to be a separate hearing to any other hearing in the proceedings.
Paragraph 5.4 of Practice Direction 3AA states that the court “must consider the best way in which the person should give evidence, including considering whether the person’s oral evidence should be given at a point before the hearing, recorded if the court so directs, transcribed or given at the hearing with, if appropriate, participation directions being made”.
Paragraph 5.5 of Practice Direction 3AA states that a court must consider whether to make participation directions, including the manner in which the person is to be cross-examined, in all cases in which it is proposed that a vulnerable party is to be cross-examined (whether before or during a hearing). The court must consider whether to direct that:
a) any questions that can be asked by one advocate should not be repeated by another without the permission of the court;
b) questions or topics to be put in cross examination should be agreed prior to the hearing;
c) questions to be put in cross examination should be put by one legal representative or advocate alone, or, if appropriate, by the judge; and
d) the taking of evidence should be managed in any other way.
Paragraph 5.6 of Practice Direction 3AA requires the court to consider, for example, if use can be made in family proceedings of evidence (including pre-recorded evidence) given by a vulnerable party in connection with any criminal proceedings or whether a vulnerable party has given an interview which was recorded but not used in previous criminal or family proceedings.
Finally, Paragraph 5.7 of Practice Direction 3AA states that all advocates, including those who are litigants in person, are expected to be familiar with and to use the techniques employed by the toolkits and approach of the Advocacy Training Council.
The provisions of FPR Rule 3A and of Practice Direction 3AA have been described by the Court of Appeal in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 as being of “fundamental importance to the administration of family justice” (paragraph 38).
In paragraph 40, the Court of Appeal went on to give some practical direction to courts when making participation directions as follows:
These rules are well established and understood by judges and practitioners. Usually, where a ground rules hearing is convened, experienced advocates will agree on the correct process for which they will seek judicial approval. Of particular importance to many vulnerable witnesses will be the need for frequent breaks and also the need for straightforward questions, rather than several questions wrapped up in one. The judge will be careful to ensure that recommendations made in respect of a vulnerable witness are followed. Intermediaries will sit with the vulnerable witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and sitting for two or more hours without a break are commonplace, must be alive to the fact that most witnesses have never previously experienced the court process and that vulnerable witnesses may become overwhelmed by it.”
In Re M: Private Law Children Proceedings: Case Management: Intimate Images, at no stage had the parties considered seeking the guidance of the court about the huge numbers of intimate images and videos which had been produced as exhibits. Mrs Justice Knowles directed the parties to address the use of intimate images, and to append to their respective skeleton arguments a schedule of this material, and to identify why this material was relevant. The father produced a detailed schedule of the intimate images on which he relied, briefly describing each item, why it was necessary and its relevance to the issues for the fact finding hearing. The mother produced a schedule which listed all the video material produced by her and the father, highlighting all the intimate material which she said should not be admitted. It was common ground that intimate images and videos relating to an alleged rape were relevant and should be viewed by the court. With regard to the intimate material, the court asked the parties to consider whether there were alternatives to its use, such as agreed transcripts of videos or admissions as to certain facts, for example, the timing of the alleged rape, and said that if it was necessary to rely on some of this material, it should be proportionate (there being a limit to the material deployed in rebuttal of any allegation), and above all, be relevant to the schedules of allegations.
The mother submitted to the court that apart from the alleged rape, all the other intimate material was irrelevant and should not be disclosed into the proceedings, as it was intended to humiliate and re-traumatise her, as the father was running a ‘sexual history’ defence.
In contrast, the father argued the intimate material was relevant, had been first relied on by the mother, and served a specific and legitimate evidential purpose.
On behalf of the child M, it was submitted that the intimate evidence needed to be relevant and probative, and that even if it satisfied both these requirements, a proportionality evaluation should include, amongst other things, the vulnerability of the parties and the effect on them and on the fact-finding exercise as a whole. A range of alternatives to the viewing of sexually explicit material was suggested, such as agreed transcripts of videos or data as to the timing of an individual image. Should the father be permitted to rely on intimate images to rebut the mother’s allegations, the court should consider the proportionality with respect to the amount of material or the type of material relied upon.
The court decided that the mother had instigated the use of such intimate material, and faced with extremely serious allegations about his conduct as a parent and as a partner, the father responded in kind. The court found it unhelpful that the parents’ responses to many of the individual items in the revised schedule of intimate material did not engage with the factual matters which were spelled out in the schedule of allegations
Mrs Justice Knowles decided that the starting point would be the relevance of the intimate material to the schedule of allegations made by both parties and its probative value. It will be excluded if it is deployed in great amounts without justification or addresses the same issue repeatedly and without bringing anything of forensic value to what has already been submitted. For example, to persuade a court that a couple’s sexual relationship was mutually satisfactory does not require the admission into the evidence of numerous still and moving intimate images of the couple having sex. However, the relevance test must – of necessity – be generously applied at a pre-hearing stage, but that is not an open door to permit everything including the proverbial kitchen sink being deployed to bolster a case.
If intimate material is relevant and has probative value, other factors may come into play in both the court’s assessment of proportionality and the ultimate control of its process. Put simply, the court must undertake a balancing exercise between the father’s right to a fair hearing when faced with extremely serious allegations, and the mother’s need to have a fair process which does not impact adversely on her ability, as a vulnerable witness, to give her best evidence to the court. The introduction into the proceedings of intimate material which is likely to be distressing to the mother and also embarrassing for the father is one of the considerations relevant to that exercise.
The mother’s sexual history and relationships with others is of no relevance when the focus of this hearing is her relationship with the father. There may be limited value in viewing a still intimate image in order to be able to determine any issues of fact. However, a small number of such images may still have relevance and probative value, for example, to demonstrate that evidence may have been manipulated or to contradict an account given in a witness statement. Whether it is necessary for them to be viewed is another matter entirely. Mrs Justice Knowles emphasised that the court can revisit these matters as the hearing progresses if it proves necessary to do so, and directed that, unless it is essential to do so, no intimate images or videos which are to be viewed will be viewed in the courtroom with all the parties present. Further, this material will only be viewed by the advocates acting for each party together with instructing solicitors. The parties are to co-operate in the production of an agreed, password protected bundle of such material and to agree transcripts where directed to do so.
Mrs Justice Knowles expressed grave concern about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made. She viewed this to be a growing problem in a number of private law children cases and one which is likely only to increase given the increased use of still and/or moving images to document intimate relationships. The volume of intimate images previously admitted without any scrutiny is itself a strong argument for guidelines to encourage the court to control this type of evidence in private law children proceedings. However, there is a further compelling reason for such guidelines, namely the emotional and psychological harm which may be caused to the parties, and particularly to an alleged victim of abuse, by the indiscriminate use of this material.
Mrs Justice Knowles set out a number of observations as to how intimate images should be managed within the context of private law children proceedings and invited counsel to collaborate to produce some agreed guidelines, which they did, as follows:
A) Sexually explicit or intimate videos and photographs should not be filed as part of evidence without a written application being made to the court in advance.
B) Any such application will require the court’s adjudication, preferably at an already listed case management hearing.
C) It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.
D) The court should carefully consider the relevance of the evidence to the issues in the case together with the likely probative value of any such evidence.
E) As part of its analysis and balancing exercise, the court will need to consider all the relevant factors including
(i) any issues as to vulnerability in relation to any of the parties and the likely impact on any such parties of the admission of such evidence and the manner in which it is used in the proceedings; and
(ii) if it is able to do so at a preliminary stage, whether the application/use of such images is motivated, in whole or in part, by a desire to distress or harm a party.
F) The circumstances in which a court will permit the inclusion in evidence of sexually explicit or intimate videos or photographs of any person are likely to be rare, in particular, in circumstances in which that person does not consent to such material being admitted.
G) Where the court is being asked to admit such material, the court should consider whether there may be a range of alternatives to the viewing of such material, for example but not limited to:
i) seeking an admission/partial admission in respect of the alleged conduct
ii) agreed transcripts and/or descriptions of any videos
iii) playing only the audio track of any video recordings
iv) using a still image rather than a video or a short excerpt from a longer video
v) editing images to obscure intimate parts of the body
vi) extracting meta data as to the timing and location of the evidence
vii) focused and specific cross examination on the issues
viii) consideration of the use of other evidence to prove the particular fact in issue instead.
H) If the court decides to admit any sexually explicit or intimate images/videos for any purpose, care should be taken to limit the volume of such evidence to that which is necessary to fulfil the purpose for which it is admitted;
I) The court should determine who can view the material that is to be admitted and limit this where necessary, bearing in mind its private character and the humiliation and harm caused to those both depicted and involved in the proceedings;
J) If the evidence is considered relevant, a starting point should be to say that it should incorporate the lowest number of images, seen by as few people as necessary, and viewed in the least damaging way;
K) It would be helpful to consider how best to ensure that the evidential security of such material can be maintained (for example, by using only password protected files) both within the hearing itself and outside it, and how the material is deployed within the proceedings;
L) Likewise, specific consideration should be given to the protection and safeguards necessary in respect of any video evidence relied upon (for example, such evidence being made available on a single laptop and brought to court, or the distribution being limited to a core specified legal team on behalf of each party).
The following participation directions were also agreed:
a) The mother not coming into direct or indirect contact with the father during the hearing or in the court precincts;
b) The father not being able to see the mother whilst she gives her oral evidence;
c) The mother being afforded regular breaks during her oral evidence including additional breaks if the mother should display signs of “trauma related distress”;
d) Exposure to areas/topics of questioning in advance of cross-examination;
e) The avoidance of unnecessarily intrusive questioning regarding allegedly traumatic experiences;
f) And the avoidance of unnecessary exposure to trauma-related material.
The court declined to direct the barrister for the father to submit his proposed questions in cross-examination of the mother to the mother’s intermediary in advance, based on the expert evidence referred to above.
