K v L
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 986 (Fam) |
| Year | 2022 |
| Court | Family Division |
2022 March 29, 30; April 29
Practice - Family proceedings - Evidence - Parties in private law children proceedings seeking to admit intimate images in evidence - Guidance on admission in evidence, management and use of such images -
Emotional and psychological harm may be caused to the parties, and particularly to an alleged victim of abuse, by the indiscriminate use in private law children proceedings of intimate images, whether videos or photographs. These can include: images of a person, whether an adult or a child, naked or partially naked; images containing part of a person’s body, clothed or unclothed, such as breasts, genitalia or the anus, which are generally regarded as private; or images 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. The use of intimate images should be discouraged, save where strictly necessary to the issues which the court needs to resolve, and can be managed in accordance with the court’s power under FPR r 22.1F1 to control evidence by adopting the following guidelines. (A) Sexually explicit or intimate images 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 images of any person are likely to be rare, particularly if 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 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) (post, paras 47, 76–78).
The following cases are referred to in the judgment:
H-N (Practice Note), In re
S (Vulnerable Party: Fairness of Proceedings), In re
The following additional cases were cited in argument or referred to in the skeleton arguments:
A County Council v DP
A (Hague Convention: Wrongful Retention), In re
B (A Child) (Family Proceedings: Judicial Guidance), In re
BY v BX
C (A Child), In re
C (Female Genital Mutilation and Forced Marriage: Fact-finding), In re
GK v PR
H-D-H (Children) (Practice Note), In re
J (Vulnerable Witness: Sexual Abuse: Fact Finding), In re
Le Brocq v Crown Court at Liverpool
R (Children) (Care Proceedings: Fact-finding Hearing), In re
R v T
PRELIMINARY ISSUE
By an application dated 7 January 2020 the father, K, applied, under Part II of the Children Act 1989, for a child arrangements order in respect of the parties’ child, M. On 22 January 2020 Mostyn J found that the mother, L, had wrongfully removed the child from the jurisdiction and ordered her return. The child was returned to the United Kingdom whereupon the mother made allegations of domestic abuse against the father, including of rape, and a final fact-finding hearing was heard in November 2020 with judgment, handed down on 8 December 2020, not upholding the mother’s allegations. The mother was granted permission to appeal in April 2021. By a judgment dated 1 December 2021 Judd J [2021] EWHC 3225 (Fam) allowed the appeal and remitted the matter for case management and rehearing. On 8 December 2021 Gwynneth Knowles J issued directions for a case management hearing to take place addressing, inter alia, the admissibility of video and photographic evidence adduced at the original fact-finding hearing with the mother and the father to include in their respective skeleton arguments a schedule of the material explaining why it was relevant.
The case management hearing was held in private and the judgment is reported with permission of the judge on condition that the anonymity of the child and her family members be strictly preserved.
The facts are stated in the judgment, post, paras 1–2, 5–11.
William Tyler QC and Emily James (instructed by
Deirdre Fottrell QC and Charlotte Proudman (instructed by
Damian Woodward-Carlton QC and Rachael Claridge (instructed by
The court took time for consideration.
29 April 2022. GWYNNETH KNOWLES J handed down the following judgment.
1 This judgment addresses a variety of case management issues prior to the rehearing of a fact-finding hearing within private law proceedings concerning a little girl, M, now aged three years. The outcome of a previous fact-finding hearing was the subject of a successful appeal by the mother. The judgment on the appeal is reported under neutral citation K v L [2021] EWHC 3225 (Fam) (referred to herein as “the appeal judgment”). The rehearing is listed before me for ten days commencing on 3 May 2022.
2 The parties to the proceedings are the father represented by Mr Tyler QC and Miss James, the mother represented by Miss Fottrell QC and Dr Proudman, and M represented by Mr Woodward-Carlton QC and Miss Claridge. I am very grateful to all the advocates for their written and oral submissions in what is highly emotive and difficult litigation. As may be apparent, the issues detailed in this judgment have necessitated close scrutiny of the court bundle.
3 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.
4 In para 9 below are listed a number of matters requiring the court’s determination at this case management hearing. I have addressed these, together with some other matters, issue by issue, later in this judgment.
Background5 Unsurprisingly given the litigation history but unhelpfully, the case management documents prepared by the mother and the father were not in agreement as to the factual background giving rise to the proceedings. Rather than attempt to construct a narrative myself for the purpose of what...
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