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Family Law Week: M (A Child – Private Law Children Proceedings- Case Management

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In private law children proceedings in the High Court, Mrs Justice Knowles made case management decisions about the use of intimate images, which she noted as an issue that is increasingly common when allegations of domestic and/or sexual abuse are made and the court is holding a fact-finding hearing. Importantly, she notes that “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” (para 77).



The parties’ child is now 3 years old and is the subject of the father’s child arrangements order application and the mother’s leave to remove application.

The parties met when the applicant father was a client of an online virtual sex service, and the respondent mother was a woman formerly subjected to the sex trade, residing in Eastern Europe. Over the course of 2-3 years, their interaction developed into a romantic relationship, and they moved in together in England. In 2018 the mother became pregnant with the subject child. Initially the father wished not to be involved in the child’s life but by the time the child was born, he wished to be fully involved. The father, however, had decided during the pregnancy (but not communicated to the mother) that he did not wish to remain involved with the mother. In 2019, four weeks after the child was born, the parties separated. There were arguments over the child’s contact with the father and about money.

In December 2019, the mother removed the baby to her home country in Eastern Europe, without the father’s consent. He issued proceedings under the Hague Convention and the Children Act. There was an order for the mother to return the baby, which she did in February 2020. The mother then issued an application for leave to remove, and the father for child arrangements. The mother alleged domestic abuse and later that the father had raped her.

There were directions hearings in March 2020 and July 2020, but no orders referred to participation directions or Rule 3A and Practice Direction 3AA (“PD 3AA”) of the Family Procedure Rules 2010. The first fact-finding hearing (the outcome later being appealed) took place from 30 November 2020 for four days. It was recorded that the court would be able to accommodate only four people on an attended basis at any one time and it was directed that the mother attend on day 2 with her counsel, interpreter and father’s counsel, with the father attending remotely, and on day 3 the father would attend court in person with his counsel and the mother’s counsel whilst the mother attended remotely. There was no application for participation directions and no ground rules hearing.

Amongst the mother’s allegations were two alleged vaginal rapes and one alleged anal rape when the mother was eight months’ pregnant; that the father had an obsessive sexual compulsion/disorder which he was unable or unwilling to control and had desires towards young looking girls, including school girls; that he showed controlling, manipulative and intimidating behaviour towards the mother throughout their relationship; that he was financially controlling and physically violent on occasion; that he had behaved inappropriately with the child by encouraging her to suck his toes, by watching him urinate, and by using abusive language to the child; a further specific occasion of sexual assault in 2016, alongside multiple rapes when she was sleeping; and violent conduct by the father during sex including non-fatal strangulation.

The father’s alleged that the mother had wrongfully removed the child from the jurisdiction and had caused the child physical and emotional harm by frequently removing her from her settled home and her father. He also alleged that the mother was controlling with respect to the time the father spent with the child and that the mother had also used abusive language to the child. The father pursued an additional allegation that the mother had subjected the child to unnecessary surgery on her labia without the father’s consent and against the advice of the child’s GP. He also asserted that the mother had fabricated increasingly serious allegations of abuse in order to obstruct the father’s relationship with the child.

The judge at the first fact-finding watched and listened to a large number of videos and recordings and read more than 1,000 pages of documents. The videos included extensive and explicit recordings of the parties having sex. The parents were both represented.

The judge reserved judgment, which she handed down on 8 December 2020. She rejected the allegations of rape and sexual abuse made by the mother and found that she had set about making allegations to malign the father and improve her application for leave to remove. She rejected the allegation by the father that the mother had sought to control his time with the child, saying that it was the actions of an anxious first-time mother. The judge stated that the mother’s removing the child from the jurisdiction had the potential to cause harm to the child as a result of a lack of contact with the father.

The mother successfully appealed the fact-finding outcome on two grounds: (1) that she did not have the benefit of participation directions; and (2) 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. Judd J allowed the appeal on 1 December 2021 and the proceedings were remitted to Mrs Justice Knowles, who made detailed directions about the intimate images issue and other disputed issues. The re-hearing was listed for ten days starting 3 May 2022.

Dr Hannah Jones, a clinical psychologist, prepared a report on the mother dated 6 February 2022 that concluded that the mother was experiencing symptoms characteristic of Complex Post-Traumatic Stress Disorder (Complex-PTSD) and that she had a Depressive Disorder with comorbid anxiety, but did not have difficulties with her cognitive functioning.

Dr Jones recommended that the mother should have the benefit of an intermediary with specific expertise in working with individuals who had experienced trauma. The mother should also have the services of a consistent interpreter because, although her comprehension of English was good, at times of stress her ability to source words and convey meaning was likely to be impaired.

With respect to participation directions, Dr Jones recommended that the mother should not come into direct or indirect contact with the father during her evidence and he should not be able to see her when she was giving her oral evidence. She should be given frequent breaks with additional breaks should she show signs of trauma related distress. Further, the mother should be exposed to areas of questioning in advance and there should not be unnecessarily intrusive questioning regarding traumatic experiences. Finally, the mother should not be unnecessarily exposed to trauma related material.

With respect to the intimate images material, Dr Jones recommended limiting the number of people who viewed the same with, ideally, the judge alone seeing the intimate images which were considered relevant. Further, the judge alone should ask the mother questions about it. If there were to be cross-examination by any of the advocates, Dr Jones recommended that only one advocate ask the mother about this material.

The father drew the attention of Mrs Justice Knowles to the fact that Dr Jones’ report was based on self-reporting by the mother but accepted that, in the light of PD3AA, the mother was deemed to be vulnerable because she had made allegations of domestic abuse against the father. Mr Tyler QC submitted that the father was sceptical as to the extent of the mother’s actual vulnerability and he suggested that the mother now had a significant tactical advantage within the proceedings. However, Mr Tyler QC accepted many of Dr Jones’ recommendations as to how the mother’s evidence should be facilitated by the court.

The Law

Rules 1.1(2) (“dealing with a case justly”) and 22.1 (“controlling the evidence”) within the Family Procedure Rules 2010 (“the FPR”) are relevant. Additionally, paragraph 19 of PD12J (which applies in any private law proceedings where allegations of domestic abuse have been made or admitted) directs the court to consider a variety of matters in order to ensure a fair and effective hearing. The court also referred to paragraph 58 of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448.

Furthermore, Mrs Justice Knowles recognised that, following the passage into law of the Domestic Abuse Act 2021, 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.


Within her analysis, Mrs Justice Knowles offered a definition of the term “intimate image” in the context of private law proceedings as follows “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, such as breasts, genitalia or the anus, which are generally regarded as private. Intimate images include those of a person engaged in what is normally regarded as private behaviour such as washing, urinating, masturbating or engaged in other sexual acts either alone or with another being…. both still and moving images.” She deliberately did not make reference to definitions contained in the criminal law as those did not meet the needs of the family court.

As part of her preparation, Mrs Justice Knowles had required the parties to append to their respective skeleton arguments a schedule of this material and to identify why this material was relevant. The father did so but the mother did not address the relevance question. It was common ground, however, that intimate images and videos relating to an alleged rape in Spain were relevant and should be viewed by the court.

Mrs Justice Knowles concluded that the deployment of intimate images, both moving and still, in these proceedings had been wholly un-boundaried and disproportionate. At no stage until the hearing in December 2021 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.

Additionally, Mrs Justice Knowles did not accept that it will be rare for relevant evidence to be excluded, stating that “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”. She, however, accepted the submission that the relevance test must – of necessity – be generously applied at a pre-hearing stage, but noted that it is “not an open door to permit everything including the proverbial kitchen sink being deployed to bolster a case” (para 66). Additionally, the court noted that 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 (para 67). Finally, she accepted (my emphasis) that “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.” She concluded by making decisions on 42 of the intimate images (para 70). 

At para 76, Mrs Justice Knowles commented that she has grave concerns about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made, perceiving it to be a problem which is already present in a growing number of private law children cases and one which is likely only to increase given the growing use of still and/or moving images to document intimate relationships. Her observations for the future are set out in 12 agreed guidelines drafted by the advocates at para 77 (A-L), the first of which is that (my emphasis) “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“.

Case summary by Lauren Suding, Barrister, Field Court Chambers

For full case, please see BAILII

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