Use of Intimate Images in Family Proceedings

Introduction

The increasing presence of intimate images within family litigation presents a difficult intersection between evidential relevance and personal dignity. In private law children proceedings, where the court’s focus is the welfare of the child, parties sometimes seek to rely on sexually explicit photographs or videos to prove or rebut allegations of domestic abuse, coercive control, or sexual misconduct. Yet such material carries an inherent risk: it may illuminate factual disputes, but it may equally humiliate, distress, or re-traumatise those involved.

The High Court decision in Re M (A Child: Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam) marks a significant moment in the development of guidance on this issue. Although arising in private law proceedings, its reasoning has wider application across family justice, including public law cases. The judgment provides both a conceptual framework and practical direction for courts and practitioners navigating this sensitive terrain.

This article is intended to provide practical guidance to both legal practitioners and litigants in person who encounter the issue of intimate images within family proceedings. It aims to explain the governing legal principles in a clear and accessible manner, while also highlighting the procedural safeguards and judicial expectations that now shape the use of such sensitive material in the family courts.

 Context and Background

The facts of Re M are striking, not merely for their complexity but for the scale of intimate material placed before the court. The proceedings concerned a young child and competing allegations between parents, including serious claims of rape, coercive and controlling behaviour, and inappropriate conduct involving the child. In response, extensive video and photographic evidence of a sexual nature was filed by both parties, often in large volumes and without prior judicial scrutiny.

The first fact-finding hearing resulted in an appeal, which was allowed. The appellate court identified failures in addressing vulnerability and ensuring fair participation, echoing principles later emphasised in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. By the time of the rehearing, expert psychological evidence demonstrated that the earlier exposure to explicit material had caused significant trauma to the mother, impairing her ability to give evidence effectively.

This evidential landscape prompted the High Court to confront a broader systemic issue: the unregulated and often indiscriminate use of intimate images in family proceedings.

 The Legal Framework

The court’s approach in Re M is grounded in established procedural principles. The Family Procedure Rules 2010 (FPR) provide the foundation, particularly the overriding objective in Part 1, which requires cases to be dealt with justly, fairly, and proportionately. Rule 22.1 gives the court wide powers to control evidence, including the ability to exclude material that would otherwise be admissible and to restrict cross-examination.

Alongside these general powers sits a more specialised framework addressing domestic abuse and vulnerability. Practice Direction 12J directs courts to focus only on allegations necessary to determine welfare outcomes. Meanwhile, Part 3A of the FPR and Practice Direction 3AA, significantly influenced by the Domestic Abuse Act 2021, require courts to consider the impact of abuse on a party’s ability to participate and to give evidence.

The importance of these provisions was underscored by the Court of Appeal in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8, where they were described as fundamental to ensuring fairness. Together, these authorities create a framework in which evidential decisions must be informed not only by relevance but also by the lived experience of the parties.

 Defining “Intimate Images”

One of the notable contributions of Re M is its attempt to articulate a working definition of “intimate images” tailored to family proceedings. Rather than adopting criminal law terminology, the court described such material broadly as images, still or moving, depicting nudity, partial nudity, or private acts such as sexual activity, washing, or other inherently personal behaviour.

This deliberately flexible definition reflects the realities of family litigation. It captures not only overtly sexual material but also images that, while less explicit, remain deeply private. The emphasis is less on categorisation and more on recognising the potential for harm inherent in their use.

 Relevance, Necessity and Proportionality

At the heart of the judgment lies a structured evaluative exercise. The court must first consider whether the material is relevant to the issues it must determine. In the context of allegations such as rape or coercive control, certain intimate images may indeed have probative value.

However, relevance alone is insufficient. The court must also assess necessity and proportionality. This reflects the broader approach in Re H-N, which emphasises that only allegations, and by extension, evidence, necessary to resolve the case should be pursued.

In practical terms, this means that the existence of a sexual relationship, or even its consensual nature, rarely justifies the admission of extensive explicit material. A single image, a transcript, or an agreed fact may suffice. The deployment of multiple images to prove the same point is unlikely to add forensic value and may instead distort the fairness of the process.

 The Impact of Vulnerability

A central theme in Re M is the recognition that the use of intimate images cannot be divorced from their psychological impact. Where a party is, or may be, a victim of domestic abuse, the court must assume that their participation and the quality of their evidence may be diminished. This assumption triggers a duty to consider protective measures.

The expert evidence in Re M illustrated how exposure to explicit material, particularly when coupled with adversarial questioning, can compound trauma. This is not merely a welfare concern; it is a matter of procedural fairness. A witness who is overwhelmed or distressed may be unable to give reliable evidence, undermining the integrity of the fact-finding process.

Accordingly, the court must weigh the probative value of the material against the risk of harm. This balancing exercise lies at the core of modern case management in family proceedings.

 Procedural Safeguards and Judicial Control

The guidance emerging from Re M establishes a clear expectation: intimate images should not be introduced into proceedings without prior judicial permission. A party seeking to rely on such material must justify its relevance and necessity, typically through a written application considered at a case management hearing.

If permission is granted, the court retains tight control over how the material is used. This includes limiting the volume of images, restricting who may view them, and considering alternative forms of evidence such as transcripts or edited extracts. In some cases, it may be appropriate for the judge alone to view the material.

The emphasis is consistently on minimisation, of both exposure and harm. The guiding principle is that such material should be used only to the extent strictly required and in the least intrusive manner possible.

 Judicial Guidance in Re M

The High Court did not confine itself to general observations but went further to formulate practical guidance for future cases. Drawing upon submissions from counsel and the court’s own reflections during the hearing, Re M sets out, a structured set of guidelines governing the admission and handling of intimate images in private law children proceedings.

Although not framed as prescriptive rules, these principles are likely to be treated as authoritative guidance in day-to-day case management. They reinforce the court’s duty to balance evidential fairness with the protection of parties, particularly those who may be vulnerable, from unnecessary harm or distress.

Mrs Justice Knowles provided following guidance in Re M (A Child: Private Law Children Proceedings: Case Management: Intimate Images) at paragraph 77:

• 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.
• Any such application will require the court’s adjudication, preferably at an already listed case management hearing.
• 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.
• specific factual issues which the court is required to determine. 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.
• probative value of any such evidence. As part of its analysis and balancing exercise, the court will need to consider all the relevant factors including:
  • 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
  • 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.
• 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.
• 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:
  • seeking an admission/partial admission in respect of the alleged conduct;
  • agreed transcripts and/or descriptions of any videos;
  • playing only the audio track of any video recordings;
  • using a still image rather than a video or a short excerpt from a longer video;
  • editing images to obscure intimate parts of the body;
  • extracting meta data as to the timing and location of the evidence;
  • focused and specific cross examination on the issues;
  • consideration of the use of other evidence to prove the particular fact in issue instead.

• 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.
• 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.
• 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.
• 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.
• 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).

Taken together, these principles establish a clear expectation that the use of intimate material will be tightly controlled, justified by necessity, and managed in a manner that minimises intrusion and preserves the dignity of those involved.

Alternatives to Explicit Evidence

An important aspect of the judgment is its encouragement of alternative evidential approaches. These may include admissions, agreed descriptions, audio extracts, or data analysis. Such methods can often achieve the same evidential purpose without the attendant risks.

This reflects a broader shift in family justice towards a more focused and proportionate evidential model. The court is not engaged in a comprehensive exploration of the parties’ private lives; it is concerned with resolving specific issues relevant to the child’s welfare.

Broader Implications and Emerging Practice

Re M has wider significance beyond its immediate facts. It signals a cultural shift in how the family courts approach intimate material, recognising both technological realities and evolving understandings of domestic abuse.

The judgment aligns with a growing body of authority emphasising the need for careful, trauma-informed case management. It also highlights the responsibility of practitioners. The decision to include intimate images should never be routine or tactical; it requires careful reflection on relevance, necessity, and impact.

For lay participants, the message is equally clear. The court is not a forum for airing every aspect of a relationship. Personal material, however compelling it may seem, will only be admitted where it genuinely assists the court in determining the issues before it.

 Conclusion

The use of intimate images in family proceedings presents a profound challenge. It engages fundamental principles of fairness, dignity, and justice. Through Re M, the High Court has provided a thoughtful and structured approach to resolving that challenge.

The guiding message is one of restraint and responsibility. Intimate images are not to be deployed as a matter of course, but only in exceptional circumstances where their evidential value clearly outweighs their potential for harm. The court’s task is to ensure that the pursuit of truth does not come at the cost of fairness, a balance that lies at the very heart of family justice.

For more information about our family law team please contact clerks@becket-chambers.co.uk