Re M: Private Law Children Proceedings: Case Management: Intimate Images [ 2022] EWHC 986
Judgment of Mrs Justice Knowles which addresses a variety of case management issues prior to the rehearing of a fact finding hearing within private law proceedings concerning a 3 year old girl. The importance of the judgment is that 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.
There was an appeal by the mother against a first instance decision in a fact finding hearing which was allowed by Judd J on two grounds. Having allowed the appeal, the proceedings were remitted to Knowles J for case management and rehearing. The case management hearing was listed for 24-25 February 2022 and the hearing itself listed for 10 days commencing 3 May 2022. The issues to be dealt with at the case management hearing included the admissibility of video and photographic evidence adduced at the fact finding hearing in December 2020. These consisted of evidence of an intimate nature. The other issues to be dealt with included the mother’s application for participation directions pursuant to Rule 3A and Practice Direction 3AA of the FPR 2010. This was a difficult and complex case with extremely serious allegations made by the mother against the father. This summary does not deal with those aspects of the matter, but considers the observations and guidance given by the judge in relation to the use of intimate images.
Knowles J expressed her grave concerns about the use of intimate images in private law children proceedings where allegations of domestic abuse are made. She said that it is a problem which is already present in a growing number of cases and one which is likely to increase. She explained that there is a need for guidelines as to the use of such material in view of the emotional and psychological harm which may be caused to the parties by the indiscriminate use of this material. During the hearing she invited counsel to collaborate with her in agreeing the following guidelines:
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)
