I am sure many of us who represent parents in private law proceedings, where allegations of domestic abuse are made, have been faced with swathes of documentary evidence which may include intimate images (photos and video footage) which the client seeks to rely on in support of their allegations, or in rebuttal to allegations made against them. Upon receiving such material do we properly scrutinise their relevance and probative value and do we ensure the correct procedures are followed when seeking to adduce such material into evidence or do we sometimes adopt too liberal an attitude and simply append everything to our client’s statements, including the proverbial kitchen sink, to bolster the client’s case?
In the recent case of Re M: Private Law Children Proceedings: Case Management: Intimate Images  EWHC 986 (Fam), Mrs Justice Knowles was tasked with considering these very questions during a case management hearing; the case having been remitted to her for case management and rehearing following a successful appeal by the mother of the fact finding judgment at first instance.
At the time of the case management hearing in March 2022, the child M was three years old. On 7th January 2020, M’s father had made an application for a child arrangements order inviting the court to order that M reside with each parent on a shared care basis. The proceedings originated in the High Court when the mother wrongfully removed M from this jurisdiction to Romania. The Court ordered M’s return. The mother did return M to the UK, but subsequently sought permission to remove M from the jurisdiction to live in Romania.
A fact finding hearing took place in November 2020. The Mother had made three allegations that the father had raped her. She further alleged that the father had an obsessive sexual compulsion/disorder and had desires towards young girls, including school girls. Additionally, the mother alleged the father was controlling, manipulative and intimidating throughout their relationship. He was alleged to be financially controlling and physically violent on occasion. The mother alleged that the father had behaved inappropriately with M by encouraging her to suck his toes, by watching him urinate, and by using abusive and extremely derogatory language to M. The father made allegations that the mother had wrongfully removed M from the jurisdiction and had caused M physical and emotional harm by frequently removing her from her settled home and her father. Father further alleged that the mother was controlling with respect to the time the father spent with M and that the mother had also used abusive language to M.
At the commencement of the case management hearing before Mrs Justice Knowles, the mother had made a further allegation of sexual assault in 2016, in addition to multiple rapes when she was sleeping. She also alleged violent conduct by the father during sex including non-fatal strangulation. The father pursued an additional allegation that the mother had subjected M to unnecessary genital surgery in Romania without his consent and against the advice of M’s GP. He also asserted that the mother had fabricated increasingly serious allegations of abuse in order to obstruct the father’s relationship with M.
The mother successfully applied for permission to appeal the fact finding judgment at first instance. Judd J heard the appeal hearing and handed down judgment on 1st December 2021.
The appeal was allowed on two grounds:
(1) The mother did not have the benefit of participation directions.
(2) The judge had given insufficient consideration to the possibility that mother may have been over-dependent on the relationship with the father or vulnerable in that relationship.
The Mother was assessed by clinical psychologist Dr Hannah Jones to address (1) whether the mother had any underlying psychological disorder which might impact on her ability to give oral evidence at the fact finding hearing and (b) if she did, what participation directions were required to assist her to give her best evidence in court. Dr Jones’ report is dated 6th February 2022. She concluded that the mother was experiencing symptoms characteristic of Complex Post-Traumatic Stress Disorder (Complex-PTSD) and that she had a Depressive Disorder with co-morbid anxiety, which was likely to impact on her ability to give her best evidence.
Dr Jones made a number of recommendations for how the mother should be supported during hearings to give her best evidence, which included the use of an intermediary with specific expertise in working with individuals who had experienced trauma, the services of an interpreter, she should not come into direct or indirect contact with the father during her evidence, have regular breaks and be exposed to areas of questioning in advance, to avoid unnecessarily intrusive questioning regarding traumatic experiences and the mother should not be unnecessarily exposed to trauma related material. With regards to the use of intimate images, Dr Jones recommended limiting the number of people who viewed the same, with the judge asking questions. If there was to be cross-examination, Dr Jones further recommended that any questions be put by one advocate.
Case Management hearing before Mrs Justice Knowles 29th & 30th March 2022
The case was remitted to Mrs Justice Knowles for case management and rehearing.
At paragraph 3 of her judgment in the case management hearing, Mrs Justice Knowles provided:
‘This judgment may be of interest in that, in part, it concerns the use of intimate images within private law proceedings and makes suggestions for how such images should be admitted into and managed within private law children proceedings. Anecdotal evidence suggests that the use of intimate images is becoming increasingly common in private law proceedings where allegations of domestic abuse (including sexual abuse) have been made and where the court has decided to determine the truth or otherwise of those allegations by holding a fact finding hearing. No previous reported judgment concerned with private law proceedings has, to my knowledge or those of the advocates, addressed this issue.’
In preparation for the case management hearing, Mrs Justice Knowles provided an order which provided for, amongst other matters, the mother and father to include in their respective skeleton arguments a schedule of the intimate image material which had been adduced as evidence at the fact finding hearing in December 2020, explaining why it was relevant.
At paragraph 47 of the judgment, Mrs Justice Knowles offered ‘a tentative definition of the term “intimate image”’:
“[…] I am describing an image of a person, whether an adult or a child, naked or partially naked. Such an image can include part of a person’s body, clothed or unclothed […] which are generally regarded as private. Intimate images include those of a person engaged in what is normally regarded as private behaviour […] or engaged in other sexual acts either alone or with another being. The images of which I am concerned are both still and moving images […].”
Within these proceedings, the mother was the first in time to produce and rely on intimate videos and recorded content. When the mother filed her schedule of allegations dated 28th April 2020, she also filed a bundle of documents and a bundle of digital exhibits which contained graphic and intimate video content including material relating to an alleged rape. The intimate material included 6 videos of the parents engaging in sexual activity on four separate occasions and two videos of the mother following sedation for dental treatment. The mother alleged that following one of four occasions of dental treatment, she was raped. The mother had also disclosed two audio recordings. The mother had given no warning to the father or the court that the material of this nature had been filed.
The father, in rebuttal, exhibited 32 videos to his statement; 17 videos. As with the mother, the father had not informed the court about the nature of the intimate material before it was filed on behalf of the father.
In November 2020, the mother filed yet more intimate material, which including intimate pictures allegedly relating to the time when she worked as a prostitute in Romania and a further video of her engaging in sexual activity with the father. The mother made further serious allegation about the father’s sexual conduct towards her, including that he forced her to perform oral sex. In response, the father appended a further video of the mother allegedly laughing about an incident or oral sex which the father said was relevant to the mother’s new allegations.
Paragraphs 29 – 44 of the judgment deal with the applicable legal framework.
Paragraphs 29 – 35 address case management, including case management in private law children proceedings where allegations of domestic abuse have been made. Specific reference was made to The Family Procedure Rules (FPR) and the need for the court to deal with case justly, having regard to the welfare issues involved (“the overriding objective”) and FPR Rule 1.1(2). Regard was also given to FPR Rule 22.1, which gives the court the power to control the evidence the parties may seek to adduce in support of their respective cases, such including 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)).
Mrs Justice Knowles also went into detail in respect of the requirements of PD12J, such being applicable in this case given the allegations of domestic abuse. Reference was also made to the Court of Appeal case of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448. This case gave further guidance in respect of case management decisions in private law children proceedings where domestic abuse is alleged. In considering this case, Mrs Justice Knowles observed that the appeals 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 went on to consider the law applicable to vulnerable witnesses from paragraphs 36 – 44, having specific regard to the Domestic Abuse Act 2021, FPR Part 3A together with Practice Direction 3AA.
Mrs Justice Knowles observed “At no stage did the parties consider seeking the guidance of the court about the huge numbers of intimate images, both still and moving which had been produced as exhibits [§55]. No directions had ever been sought or given in respect of the abundance of intimate images which had been filed in this case.
Mrs Justice Knowles determined that “the deployment of intimate images, both moving and still, in these proceedings has been wholly un-boundaried and disproportionate […] At no stage until the hearing before Judd J did the advocates or the court consider the relevance and probative value of this material let alone the proportionality of using it within private law children proceedings […].” [§63]
Keeping firmly in mind the court’s powers to control the evidence, Mrs Justice Knowles held that the starting point for the court was “the relevance of the material to the allegations made by both parties and its probative value” [§66]. She went on to say that evidence “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 […] 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”. [§66].
At paragraph 67, Mrs Justice Knowles went on to say:
“If 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 – in this case – 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”.
At paragraph 68:
“[…] I also accept that there may be limited value in viewing a still 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 contradict an account given in a witness statement. Whether it is necessary for them to be viewed is another matter entirely.”
Mrs Justice Knowles expressed grave concerns about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made and it is perceived to be a growing problem, which is likely to only increase. The judge further observed that in cases such as this, where the volume of intimate images had been filed without any scrutiny, “there is 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.” [§76].
Mrs Justice Knowles made some general observations in respect of the use of intimate images for future cases, from which the advocates drafted 12 agreed guidelines at paragraphs 77(A – L). For the purposes of brevity for this article, I will not set out those 12 points, but would strongly encourage the reader to consider them.
At paragraph 78 of her judgment, Mrs Justice Knowles commented, “My suggestions for the management of intimate images in such proceedings are intended to be straightforward and to discourage their use save where strictly necessary to the issues which the court needs to resolve.”
- Be prepared to give robust advice to the client who might be seeking to file any intimate images in support of their case as to the relevance and probative value of the material.
- Be prepared to challenge the client in respect of any such material, including consideration for the emotional and psychological impact on the other party and the children.
- Ensure a proper application is made in advance to the court seeking permission to file such material.
- Be prepared to provide detailed reasoning and justification to the court as to the relevance and probative value of any intimate material upon which the client seeks to rely.