M (A Child: Private Law Children Proceedings: Case Management: Intimate Images)  EWHC 986 (Fam) (29 April 2022)
The use of intimate images in private law proceedings is increasing in cases involving allegations of domestic abuse. Prior to this judgment, there was no reported case addressing such an issue and PD12J offers no assistance as to the use of such images either. Mrs Justice Knowles has given guidance in the case of M (A Child: Private Law Children Proceedings: Case Management: Intimate Images)  EWHC 986 (Fam) as to the admission and management of intimate images (moving and still) in private law proceedings.
The judgment ‘addresses a variety of case management issues prior to the
rehearing of a fact finding hearing within private law proceedings’ [para 1].
The allegations before the court in this case included sexual abuse, controlling behaviour, physical abuse and financial abuse. In terms of how intimate images came to be before the court, ‘the mother instigated the use of such material and continued to do so until shortly before the first fact-finding hearing in November 2020. Faced with extremely serious allegations about his conduct as a parent and as a partner, the father responded in kind by deploying a vast swathe of such material, some of which was intended to provide context to the couple relationship and some of which was intended to correct what he described as the misleading impression created by the mother’s use of excerpts from longer videos or of videos taken out of context’ [para 63]. Material produced included intimate photographs and graphic and intimate video content. The court determined that ‘the deployment of intimate images, both moving and still, in these proceedings has been wholly un-boundaried and disproportionate’ [para 63].
The court provided a definition of ‘intimate images’: ‘For the sake of clarity, when I use the term “intimate image” in the context of private law proceedings, 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, 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. The images with which I am concerned are both still and moving images. None of the parties sought to define what an intimate image was but it struck me that this might be helpful for courts and practitioners. In offering my suggested definition, I have deliberately not made reference to definitions contained in the criminal law as those did not seem to me to meet the needs of the family court’ [para 47].
The guidance is set out at paragraph 77 of the judgment and reads as follows:
- 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;
- 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;
- 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;
- 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).
The court recognised that judges dealing with private law matters involving allegations of domestic abuse are already facing difficulties due to the volume of work in the family court however, the guidance in respect of intimate images is ‘intended to be straightforward and to discourage their use save where strictly necessary to the issues which the court needs to resolve’ [para 78]. Arguably, with strict case management in respect of the use of such images it is likely to reduce any time estimate for fact finding hearing and the evidence to be considered by the court rather than parties proceeding to exhibit such intimate images (moving and still) as they wish. Additionally, it is likely to assist parties for the court to manage the use of intimate images at an early stage where notice is given before they are filed as part of the evidence.
The judgment can be viewed here - M (A Child : Private Law Children Proceedings: Case Management: Intimate Images)  EWHC 986 (Fam) (29 April 2022) (bailii.org)