This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on Friday 29 April 2022
Mrs
Justice Knowles:
- 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
M
(A
Child)
[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.
- 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.
- 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 paragraph 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.
Background
- 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 is a case
management
judgment, I have decided to rely on the summary of the background set out by Judd J at paragraphs 2-12 of her appeal judgment which, by reference, I incorporate into this judgment. No party
made
submissions to
me
that her summary was inaccurate.
- Following the fact finding judgment at first instance, the
mother
applied for permission to appeal which was granted in April 2021. The appeal hearing took place in November 2021 and the judgment of Judd J was handed down on 1 December 2021. The
mother's
appeal was allowed on two grounds.
- The first ground was that the
mother
did not have the benefit of participation directions. There was a duty on the court to ensure that a party's vulnerability was addressed by the use of participation directions to enable that party to give their best evidence to the court. In coming to her conclusion, Judd J highlighted the sensitive nature of the case where there were allegations of the utmost seriousness, including two alleged vaginal rapes and one alleged anal rape when the
mother
was eight
months'
pregnant. She also noted that there was evidence that the
mother
had some long-term underlying frailties and suffered from anxiety. Those
matters
"cried out for participation directions and a ground rules hearing, not just for the sake of the
mother
but for the integrity of the court process itself" (paragraph 66 of the appeal judgment).
- The second ground was 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. The judge's analysis of that issue was found to be limited and Judd J accepted that there was some force in the submission that the judge had looked at the evidence in a compartmentalised
manner.
- Having allowed the
mother's
appeal, Judd J remitted these proceedings to
me
for case
management
and rehearing. On 8 December 2021, I conducted a case
management
hearing and listed both a rehearing of the factual allegations
made
against each other by the
mother
and the father and a case
management
hearing on 24 and 25 February 2022.
My
order itemised the
matters
which the court would consider in February 2022 as follows:
A) The admissibility of video and photographic evidence adduced at the fact finding hearing in December 2020 (the intimate image evidence). The
mother
and the father were to include in their respective skeleton arguments a schedule of this
material
explaining why it was relevant;
B) The
mother's
application for participation directions pursuant to Rule 3A and Practice Direction 3AA ("PD 3AA") of the Family Procedure Rules 2010, including those for physical distancing of the
mother
and the father, those in respect of how her oral evidence
might
be received by the court, and those requiring any questioning of her to be provided in advance;
C) Whether there should be cross-examination of the parties' sexual history and behaviour;
D) Whether the first-instance judgment should be included in the court bundle;
E) Whether the transcripts of evidence should be included in the court bundle; and
F) Witness requirements.
- I also gave directions for the determination on the papers of a Part 25 application by the
mother
for a jointly instructed expert adult psychologist to report on (a) 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. Shortly before Christmas 2021, I permitted the instruction of Dr Hannah Jones, a clinical psychologist, to prepare a report upon the
mother.
Regrettably, given the dispute as to the precise nature of Dr Jones's instructions, I was required both to descend into the
minutiae
of what documents should be disclosed to Dr Jones and, because the questions in the draft letter of instruction were unfocussed and repetitive, to draft the questions for Dr Jones
myself.
- The case
management
hearing listed in February had to be adjourned to 29 and 30
March
2022 because of illness in the
mother's
legal team.
The Parties' Allegations
- What follows is a very bare outline of the parties' allegations set within the context of the applications
made
to the court.
- By an application dated 7 January 2020, the father seeks a
child
arrangements order in respect of
M,
inviting the court to order that she live 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. On 22 January 2020,
Mostyn
J found that
M
had been wrongfully removed from this jurisdiction and ordered her return. The
mother
had returned here with
M
by the time of a hearing on 18 February 2020 before HHJ Watson (sitting as a judge of the High Court). By an application dated 28 October 2020, the
mother
sought permission to remove
M
from this jurisdiction to live in Romania.
- At the first fact finding hearing in November 2020, the
mother
made
three allegations that the father raped her. She stated that he had an obsessive sexual compulsion/disorder which he was unable or unwilling to control and had desires towards young looking girls, including school girls. Additionally, the father was said to have shown controlling,
manipulative
and intimidating behaviour towards the
mother
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 language to
M
such as calling her a "whore" and a "cunt".
- The father, for his part, alleged that the
mother
had wrongfully removed
M
to Romania and had caused
M
physical and emotional harm by frequently removing her from her settled home and her father. He alleged that the
mother
was controlling with respect to the time the father spent with
M
and had also called
M
"a fat bitch", a "
moaning
pig" and so on.
- At the commencement of this case
management
hearing, the allegations originally
made
were – for the
most
part – still pursued. However, the
mother
now alleged a further specific occasion of sexual assault in 2016, alongside
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 surgery on her labia in Romania without the father's 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 Report of Dr Jones
- Dr Jones' report was dated 6 February 2022. It provided a detailed insight into the nature and the extent of the
mother's
vulnerabilities. What follows is a summary of those
matters
relevant to the case
management
exercise.
- First, Dr Jones was of the opinion 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. Dr Jones was confident that the
mother
did not have difficulties with her cognitive functioning.
- Dr Jones reports that Post-Traumatic Stress Disorder (PTSD) is a psychological disorder that
may
occur in people who have experienced a traumatic event. People with PTSD have intense, disturbing thoughts and feelings related to their experience that last long after the traumatic event has ended. They
may
relive the event through flashbacks or nightmares; they
may
feel sadness, fear or anger; and they
may
feel detached or estranged from other people. People with PTSD
may
avoid situations or people that remind them of the traumatic event, and they
may
have strong negative reactions to something as ordinary as a loud noise or an accidental touch. Symptoms of PTSD fall into four categories: Intrusion; Avoidance; Alterations in cognition and
mood;
Alterations in arousal and reactivity. The
mother
described each of these symptoms to Dr Jones.
- Complex-PTSD has been described as typically associated with chronic and repeated traumas and includes not only the symptoms of PTSD but also disturbances in self-organisation reflected in emotion regulation, self-concept and relational difficulties. In Complex-PTSD, the expression of emotion regulation difficulties predominantly includes emotional sensitivity, reactive anger, and poor coping responses. Again the
mother
described each of these symptoms to Dr Jones.
- The
mother's
reported symptoms of Complex-PTSD were likely to impact upon her ability to provide her best evidence. Traumatic stress can influence engagement with court processes in a diversity of ways, with the impact having a positive correlation with exposure to trauma related
material
and exposure to increased stress (each being typical within court hearings). Research indicates that for those individuals experiencing trauma related symptoms, attempting to relay their experiences can produce
memories
that are fragmented, lacking in specific details, and difficult to position within a linear narrative. Those who experience trauma are
more
likely to produce inconsistent or incomplete accounts, and accounts
may
shift as an individual comes to terms with their experiences. Trauma
memories
are
more
likely to be partial, and fragmented into key
moments.
The impact on
memory
that trauma survivors experience
means
they are at raised risk of being susceptible to suggestive influences and vulnerable to court proceedings,
most
significantly within a cross-examination where there is opportunity to use suggestive,
misleading
questions in an attempt to find inconsistences and inaccuracies in a witness's testimony to imply unreliable evidence.
- High levels of negative affect
may
predispose the
mother
to intense
maladaptive
emotional responses and dysfunctional cognitive processes such as selective attention to negative or threatening cues and hypervigilance to threat. Such
maladaptive
cognitive processes can result in emotional dysregulation and impaired social functioning.
Moreover,
an increased perception of threat accompanied by elevated emotional states
might
exacerbate negative responses to ongoing stressors or serve itself as a source of chronic stress, with the resulting stress-related co-
morbidities.
As a result of this, trauma related distress is often obscured by seeming innocuous behaviour or response. Within a courtroom setting, it is often challenging to identify when traumatic stress has been induced (or 'triggered'), and the resulting behaviour can appear confrontational, defensive, bizarre, or evasive, and thus can give the impression that an individual is not in distress. According to Dr Jones, the
mother
recognised this to a certain extent, highlighting the severe impact that cross examination regarding the intimate video
material
by the father's barrister had had. She said that, in response to feeling extremely "intimidated", she became "defensive" rather than expressing the fear and shame that she was experiencing. The
mother
said that "I try to be strong, I try not to cry, I didn't want him to see
me
crying". Complex-PTSD related shame and guilt
may
also cause vulnerability to negative insinuations during cross-examination, with factors such as the tone of voice used acting as potential cues for feelings of powerlessness and stigmatisation.
- The
mother's
medical
records detailed a depressive disorder, ongoing hypervigilance, adrenergic symptoms, panic attacks, and fluctuating
mood.
She is currently prescribed anti-depressant
medication.
Dr Jones suggested that the
mother's
experiences of symptoms associated with a depressive disorder and comorbid anxiety were
most
appropriately interpreted within the context of her wider symptoms of Complex-Post Traumatic Stress.
- 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.
26. The
mother
told Dr Jones that the past proceedings "put
me
in a depression" and that she felt "broken" as a result. She described finding cross-examination regarding the intimate videos and images particularly difficult to
manage.
The
mother
said that she continued to experience trauma related distress as a result of this experience, including physiological symptoms, flashbacks, nightmares, and low
mood.
It was evident that the inclusion of the "large number of explicit videos…several large pornographic photographs of her and several
more
small 'stills' exhibiting videos" (as described in paragraph 64 of the appeal judgment) in addition to questioning which "
may
not have been necessary" (para 67) including
material
from prior to the
mother's
relationship with the father had acted as a significant trauma for the
mother.
The
mother
told Dr Jones that she had been "forever damaged" as a result of this, and discussed that she "didn't know how to
manage".
She described extreme physiological symptoms associated with this experience, in addition to panic attacks, re-experiencing, and depressed
mood.
Dr Jones was of the opinion that subsequent inclusion of this
material
within a further court setting was likely to have a compounding traumatic impact on the
mother.
The exposure to the intimate images and videos or other trauma related
material
was likely to impact on the
mother's
ability to give her best oral evidence.
- With respect to such
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 conclusions of Dr Jones' report were accepted by the
mother
and the
children's
Guardian, the latter noting that Dr Jones' analysis was congruent with her own observations of the
mother's
vulnerabilities set out in her report dated 21 January 2021. The father drew
my
attention 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
Case
Management
- The Family Procedure Rules 2010 ("the FPR") contain the procedural
means
by which the family court deals with cases justly, having regard to the welfare issues involved ("the overriding objective"). FPR Rule 1.1(2) states:
"Dealing with a case justly includes, so far as practicable –
a) ensuring that it is dealt with expeditiously and fairly;
b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
c) ensuring that the parties are on an equal footing;
d) saving expense; and
e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
- In order to give effect to the overriding objective, FPR Rule 22.1 gives the court power to control the evidence the parties
may
seek to adduce in support of their respective cases. FPR Rule 22.1(1) states that the court
may
control the evidence by giving directions as to (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court. Ultimately, the court has 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)).
- Allied to these general case
management
powers are the requirements of PD12J which applies in any private law proceedings where allegations of domestic abuse have been
made
or admitted. Where the court has determined that a fact finding hearing is necessary to determine disputed allegations, paragraph 19 of PD12J directs the court to consider a variety of
matters
in order to ensure a fair and effective hearing. Of relevance to the issues in this case, those
matters
include:
A) identifying the key facts in dispute (paragraph 19(a));
B) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse (paragraph 19(d)); and
C) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim
may
require at the fact-finding hearing in order to give that evidence (paragraph 19(j)).
- In 2021, the Court of Appeal offered further guidance to judges
making
what are often difficult case
management
decisions in private law
children
proceedings where domestic abuse is alleged. Paragraph 58 of Re H-N and Others (
Children)
(Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 stated as follows:
" …We offer the following pointers:
a) PD12J (as its title demonstrates) is focussed upon 'domestic violence and harm' in the context of '
child
arrangements orders and contact orders'; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the
child
welfare issues that are before the court;
b) PD12J paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is 'necessary' in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to
child
arrangements; or
iv) Consider the need for a domestic-abuse related activity
c) Where a fact-finding hearing is 'necessary', only those allegations which are 'necessary' to support the above processes should be listed for determination;
d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other."
- In Re H-N, the Court of Appeal suggested that, where a pattern of coercive and controlling behaviour was alleged, that assertion should be the primary issue for determination at the fact finding hearing. Additionally, "any other
more
specific, factual allegations should be selected for trial because of their potential probative relevance to that alleged pattern of behaviour and not otherwise unless any particular allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape)" (paragraph 59).
- At the conclusion of its discussion on the relevance of criminal law concepts in cases of this type, the Court of Appeal said this in paragraph 74 of Re H-N:
"The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear cut. That is particularly so when the judge in the Family court
must
conduct their own analysis of issues such as consent, and
must
do so in the context of a fair hearing. In this regard the procedural
manner
in which the hearing is conducted and, in particular, the scope of cross-examination of an alleged victim as to their sexual history, past relationships or
medical
history, justify consideration separately from the general prohibition on family judges adopting criminal concepts in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgment, should inhibit further consideration of such procedural
matters.
They are beyond the scope of this judgment and are
more
properly to be considered elsewhere."
- 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.
Vulnerable Witnesses: Allegations of Domestic Abuse
- 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.
- As amended with effect from 31 January 2022, FPR Part 3A concerns vulnerable persons and their participation and evidence in family proceedings. Rule 3A.1 defines a participation direction as either a "general case
management
direction
made
for the purpose of assisting a witness or party to give evidence or participate in proceedings" and "a direction that a witness or party should have the assistance of one or
more
of the
measures
in rule 3A.8". Rule 3A.2A is headed "Court's duty to consider
making
participation directions: victims of domestic abuse" and states as follows:
(1) Subject to paragraph (2), where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court
must
assume that the following
matters
are diminished –
a) the quality of the party's or witness's evidence;
b) in relation to a party, their participation in the proceedings.
(2) The party or witness concerned can request that the assumption set out in paragraph (1) does not apply to them if they do not wish it to.
(3) Where the assumption set out in paragraph (1) applies, the court
must
consider whether it is necessary to
make
one or
more
participation directions.
- FPR Rule 3A.7 sets out a list of
matters
to which the court
must
give consideration when deciding to
make
one or
more
participation directions. These are as follows:
a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of (i) any other party or other witness to the proceedings or
members
of the family or associates of that other party or other witness; or (ii) any
members
of the family of the party or witness;
b) whether the party or witness (i) suffers from
mental
disorder or otherwise has a significant impairment of intelligence or social functioning; (ii) has a physical disability or suffers from a physical disorder; or (iii) is undergoing
medical
treatment;
c) the nature and extent of the information before the court;
d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
e) whether a
matter
is contentious;
f) the age,
maturity
and understanding of the party or witness;
g) the social and cultural background and ethnic origins of the party or witness;
h) the domestic circumstances and religious beliefs of the party or witness;
i) any questions which the court is putting or causing to be put to a witness in accordance with section 31(G) of the 1984 Act;
j) any characteristic of the party or witness which is relevant to the participation direction which
may
be
made;
k) whether any
measure
is available to the court;
l) the costs of any available
measure;
and
m)
any other
matter
set out in Practice Direction 3AA.
- The
measures
referred to are listed in Rule 3A.8 and include those preventing a party or witness from seeing another party or witness, provision for a party or witness to participate in the proceedings with the assistance of an intermediary, and provision for a party or witness to be questioned in court with the assistance of an intermediary.
- Practice Direction 3AA entitled "Vulnerable Persons: Participation in Proceedings and Giving Evidence" sets out the procedure and practice to be followed "to achieve a fair hearing by providing for appropriate
measures
to be put in place to ensure that the participation of parties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability" (paragraph 1.2). Significantly, paragraph 1.4 requires all parties and their representatives to work with the court and each other "to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability as defined with reference to the circumstances of each person and to the nature of the proceedings". Paragraph 2.2
makes
plain that, as provided for by FPR Rule 3A.2A (where it is stated that a party or witness is or is at risk of being a victim of domestic abuse carried out by certain third parties), it is to be automatically assumed for the purposes of FPR Part 3A that a party or witness is vulnerable where they are or are at risk of being a victim of domestic abuse. For such parties and witnesses, the court should proceed directly to a consideration of whether a participation direction is necessary.
- Paragraphs 5.2 to 5.7 of Practice Direction 3AA
make
provision for ground rules hearings prior to any hearing which evidence is to be heard. The purpose of such hearings is to consider any necessary participation directions about the conduct of the advocates and the parties in respect of the evidence of a vulnerable person and to put in place any necessary support in place for that person. The ground rules hearing should address the
matters
set out in paragraphs 5.3 to 5.7 but does not need to be a separate hearing to any other hearing in the proceedings.
- Relevant to these proceedings, paragraph 5.4 states that the court "
must
consider the best way in which the person should give evidence, including considering whether the person's oral evidence should be given at a point before the hearing, recorded if the court so directs, transcribed or given at the hearing with, if appropriate, participation directions being
made".
Paragraph 5.5 states that a court
must
consider whether to
make
participation directions - including the
manner
in which the person is to be cross-examined - in all cases in which it is proposed that a vulnerable party is to be cross-examined (whether before or during a hearing). The court
must
consider whether to direct that:
a) any questions that can be asked by one advocate should not be repeated by another without the permission of the court;
b) questions or topics to be put in cross examination should be agreed prior to the hearing;
c) questions to be put in cross examination should be put by one legal representative or advocate alone, or, if appropriate, by the judge; and
d) the taking of evidence should be
managed
in any other way.
- Finally, paragraph 5.6 requires the court to consider, for example, if use can be
made
in family proceedings of evidence (including pre-recorded evidence) given by a vulnerable party in connection with any criminal proceedings or whether a vulnerable party has given an interview which was recorded but not used in previous criminal or family proceedings. Paragraph 5.7 states that all advocates, including those who are litigants in person, are expected to be familiar with and to use the techniques employed by the toolkits and approach of the Advocacy Training Council.
- The provisions of FPR Rule 3A and of Practice Direction 3AA have been described by the Court of Appeal in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 as being of "fundamental importance to the administration of family justice" (paragraph 38). I note that the version of the FPR Rule 3A and of Practice Direction 3AA cited in Re S predate the amendments
made
in consequence Domestic Abuse Act 2021. In paragraph 40, the Court of Appeal went on to give some practical direction to courts when
making
participation directions as follows:
"These rules are well established and understood by judges and practitioners. Usually, where a ground rules hearing is convened, experienced advocates will agree on the correct process for which they will seek judicial approval. Of particular importance to
many
vulnerable witnesses will be the need for frequent breaks and also the need for straightforward questions, rather than several questions wrapped up in one. The judge will be careful to ensure that recommendations
made
in respect of a vulnerable witness are followed. Intermediaries will sit with the vulnerable witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and sitting for two or
more
hours without a break are commonplace,
must
be alive to the fact that
most
witnesses have never previously experienced the court process and that vulnerable witnesses
may
become overwhelmed by it."
Matters
Requiring Determination
Schedule of Allegations
- At the directions hearing I conducted on 8 December 2021, I
made
specific provision for the
mother
and the father to respond to each other's case
management
document describing their respective allegations. The parties produced a composite schedule of allegations for the
March
hearing which contained responses by the father to the
mother's
allegations but no responses by the
mother
to the father's allegations. I raised that deficit with
Miss
Fottrell QC, but did not receive a satisfactory response. As will be apparent later in this judgment, I invited the parties – in fulfilment of their duty to the court to co-operate with it – to review and simplify these documents (alongside other
matters).
On 6 April 2022, I received a revised schedule of allegations
made
by the
mother.
As I had directed in December 2021, that document provided an overview of the
mother's
case and signposted the court to the
matters
she sought to prove under each broad category of alleged abuse. I note that the father disputes each and every one of the allegations
made.
However, by 6 April 2022, the
mother
had still not complied with
my
December 2021 direction to respond to the father's schedule of allegations. On 7 April 2022, I asked
my
clerk to enquire why the
mother
had not responded to the father's schedule of allegations and she was told by
Miss
Fottrell QC later that day that the failure to do so had been an oversight and that a response was in hand. On 11 April 2022,
Miss
Fottrell QC emailed
my
clerk to apologise for the continuing delay and eventually, I received the
mother's
response to the father's schedule of allegations on 12 April 2022.
Whilst the tenor of this litigation
might
lead the court to the ready assumption that the
mother
also disputed each allegation
made
by the father, a direction for a response to a schedule of allegations is to be complied with however obvious the
mother's
position
might
seem. A direction is a court order - it is not an optional extra. The purpose of this direction was to define clearly the issues which required determination at the fact finding hearing so that each party knew the case it had to respectively either
meet
and/or prove. Regrettably, that has not happened in the
manner
I envisaged either at the December 2021 hearing or as a result of
March
hearing.
Intimate Images
- I will address this issue by (a) offering a tentative definition of the term "intimate image"; (b) describing how this
material
came to be deployed within these proceedings; (c) explaining the positions advanced by each party both prior to the hearing in
March
2022 and after that hearing and following the discussions I directed them to have; (d) explaining
my
decision on the use of such images in this case; and (e) providing some tentative guidance as to the use of such images in private law
children
proceedings.
Definition
- 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.
History
- Turning to the history of how such images came to be disclosed into these proceedings, the first statement of the father focused exclusively on the wrongful removal of
M
to Romania and his desire for a relationship with his
child.
There was no
mention
of how he came to
meet
the
mother
or of their sexual relationship. On her return from Romania, the
mother
produced at court a number of documents which alleged "deviant behaviour" by the father, including watching pornography involving very young girls, and compulsive
masturbation
several times a day. She alleged that the father had emotionally abused her and had "humiliated the baby by asking her to suck his big toe". Other allegations were
made
which it is not necessary to detail here but the
mother
stated that she had documentary evidence including "photographic exhibits" and "audio video recordings". She produced a still image of
M
with her
mouth
on the father's toe and appended what
Mr
Tyler QC contended were covertly obtained recordings of conversations which had taken place between her and the father.
- In response, the father produced a 31 page statement plus 158 pages of exhibits in which he described the relationship and his response to the
mother's
allegations. That statement referred three times to how the
mother
and father
met
online but not in a great deal of detail. There was a fleeting reference to the
mother
working online and another to her working as a webcam
model.
He
made
no reference in this statement or the exhibits to the couple's sexual history which, at that time, had not been put in issue by the
mother.
Thereafter, the
mother's
second statement on 6
March
2020 repeated
many
of the allegations
made
in the earlier
material.
However, by 16
March
2020, the
mother
had
made
allegations of domestic abuse, including an allegation of rape, to the police.
- The
mother's
schedule of allegations dated 28 April 2020 contained ten allegations, including three of rape, and was supported by a statement which
made
very serious allegations about the father's conduct towards her. A bundle of documents and a bundle of digital exhibits were appended which contained graphic and intimate video content including
material
relating to an alleged rape. The intimate
material
included 6 videos of the
mother
and father 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. Additionally, there were two audio recordings taken covertly by the
mother
of a conversation between her and the father. In her statement, the
mother
acknowledged how embarrassed she felt at showing and discussing this
material
with her legal representatives though she recognised that "it is important that I show true information". There was no warning to the father or to the court that
material
of this nature had been filed. Thus, the
mother
was the first in time to produce and rely on intimate videos and recorded content.
- The
mother's
case was, in essence, that she had been treated by the father as a possession and a toy to use for his sexual pleasure. The father had inflicted pain on her and this apparently increased his sexual arousal. His sexual behaviour and coercion (including during their sexual relations)
meant
that the
mother
felt unable to refuse his demands.
- In rebuttal, the father exhibited 32 videos to his statement. Seventeen of these videos were concerned with the four occasions about which the
mother
had produced video
material.
Mr
Tyler QC contended that these seventeen videos demonstrated an entirely different perspective on the couple's sexual relationship to those chosen by the
mother.
A further three videos were submitted to allegedly show that the
mother
was either discussing in positive terms or
masturbating
to the very videos which the
mother
claimed were abusive. Ten of the videos exhibited by the father were in fact filmed by the
mother
and were produced to rebut her assertion that she did not consent to being filmed and that she had only filmed sexual intimacy with the father on one occasion. The remaining video
material
was produced by the father to show that the sexual relationship between the parties was not characterised by coercion and control throughout as the
mother
alleged. Once
more,
the court was not told about the nature of this intimate
material
before it was filed on behalf of the father.
- Despite the deployment of this
material,
the
mother's
fifth statement dated 23 November 2020 and some 200 pages long exhibited yet
more
intimate
material.
This included intimate pictures allegedly relating to the time when she worked as a prostituted woman in Romania; and a further video of her and the father engaging in sexual activity. In a statement
made
in consequence of
my
December 2021 directions, the
mother
made
further serious allegations about the father's sexual conduct towards her, including that he forced her to perform oral sex, that he strangled her during sex, and that he regularly raped her whilst she slept. The father's statement in reply appended one further video of the
mother
allegedly laughing about an incident of oral sex which he said was relevant to the
mother's
new allegations.
- In a statement filed in June 2021 to explain the effect on her of the court hearings and, in particular, of the first fact finding hearing, the
mother
said at paragraph 21: "I cannot believe [the father] was allowed to upload videos of
me
masturbating
for example, how is that relevant to the issues in the case? [The father] tried to
make
me
look like a woman who is always up for it or asking for it. Nobody asked
my
permission at all, it was shocking so
many
people to see those videos and to have everyone else watching them. I lived through the trauma and was being
made
to do so again. I felt sick to see the father had added videos of
me,
which I had no knowledge of. I am sure that [the father] added those videos to humiliate
me.
I feel that he abused
me
all over again with those videos. I am deeply ashamed. I want [the father] to give an undertaking to the court to destroy all the videos and images he has of
me.
I cannot cope with knowing he probably still
masturbates
over it. ...". I note that the
mother
described similar feelings to Dr Jones.
- 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. This
matter
was case
managed
in advance of the first fact finding hearing by HHJ Jakens on 20 July 2020 when the fact finding hearing was listed for August 2020 and again on 30 July 2020 when the fact finding hearing listed in August was adjourned to November 2020. Apart from a
mention
of time being set aside for the viewing of the video
material,
no other directions were given with respect to the profusion of intimate images in this case. At the first fact finding hearing, HHJ Henson QC viewed the videos containing intimate
material
and inspected the still intimate images. I was not told that any party raised objection to her doing so.
The Parties' Positions
-
My
direction for the parties to address the use of intimate images in this case required the
mother
and the father to append to their respective skeleton arguments a schedule of this
material
and to identify why this
material
was relevant. The father produced a detailed schedule of the intimate images on which he relied, briefly describing each item, why it was necessary and its relevance to the issues for the fact finding hearing. He also responded to the intimate
material
produced by the
mother
in similar form. I observe that the father's legal team alone had viewed and considered all this
material.
For her part, the
mother
produced a schedule which listed all the video
material
produced by the
mother
and the father, highlighting all the intimate
material
which she said should not be admitted. That document was of limited assistance to
me
for, though it identified briefly the nature of the intimate
material,
it did not engage with whether each item was necessary or relevant. However, it was common ground that intimate images and videos relating to an alleged rape in Spain were relevant and should be viewed by the court.
- After I heard counsel's submissions about the intimate images, I indicated that the parties should reconsider the relevance and necessity of the court needing to view all of this
material
at the fact finding hearing. They should ask themselves whether there were alternatives to its use such as agreed transcripts of videos or admissions as to certain facts, for example, the timing of the alleged anal rape. If it was necessary to rely on some of this
material,
what was proportionate (there being a limit to the
material
deployed in rebuttal of any allegation)? Above all, the parties were asked to consider the relevance of this
material
to the schedules of allegations. Following those observations, the parties produced on 6 April 2022 a document entitled an "amended compromise schedule to the applicant father's photographs and video exhibits". There was no comparable schedule prepared in respect of the
mother's
own
material.
- Turning to the
mother's
position,
Miss
Fottrell QC submitted in her written and oral submissions that the intimate images submitted by both parents should not be disclosed into the proceedings because these were irrelevant.
Material
relating to the
mother's
sexual activities and conduct prior to
meeting
the father was of no relevance. She alleged that the use of such images by the father was intended to humiliate and re-traumatise the
mother.
The only intimate images the Court should view were of the alleged rape in Spain. She suggested that the father appeared to be running a "sexual history" defence that, because the
mother
was sexually experienced and adventurous and available to him and others for sex, she could not possibly have been raped or sexually abused as she contended. Finally, she suggested that the father had not sought the
mother's
consent before taking intimate images of her and, in those circumstances, that behaviour amounted to a potential criminal offence. Its deployment in these proceedings by the father was intended to traumatise and humiliate the
mother
– a form of "revenge porn" – and therefore the court should not admit this
material
into the proceedings.
- Following the submission of additional case
management
documents on 6 April 2022, the
mother's
position had undergone some revision. She now accepted, in complete and stark contrast to her earlier case, that there were on occasion
mutually
enjoyable sexual relations between her and the father. According to
Miss
Fottrell QC, that
meant
that intimate images depicting this
mutually
enjoyable and consensual behaviour were irrelevant. The court should balance relevance against (i) the impact on the
mother
of the intimate images being viewed/used at the fact finding hearing; (ii) the father's
motivation;
and (iii) proportionality as to volume and consequences.
Miss
Fottrell QC submitted that any decision I
made
with respect to this
material
should be kept under review before and during the hearing.
- On behalf of the father,
Mr
Tyler QC submitted that the
mother
was seeking to rewrite the narrative of the proceedings by arguing that none of the disputed intimate images should be admitted into the proceedings as evidence. That
material
had been deployed first in time by the
mother
and included explicit images of both
M's
parents together with photographs of a private nature of the father's son and his girlfriend, all of which were used by the
mother
without the consent of those depicted. There was no suggestion of the need for prior application to the court in respect of such
material.
When the father rebutted the
mother's
allegations, the
mother
now sought to withdraw her exhibits of intimate images and to prevent the father from relying on his, while standing by her original allegations, to which, on her own (original) case, the exhibits were relevant.
Mr
Tyler QC vigorously rebutted the suggestion that he was running a "sexual history" defence case. It was the
mother
who first produced sexual
material
in order to suggest that the father's sexual behaviour was inappropriate. The father filed evidence in response to the
mother's
extremely serious allegations which the
mother,
by producing the explicit
material
she exhibited, sought to prove. In fact, the
mother
was running an equivalent sexual history case against the father by suggesting that he preyed on young vulnerable foreign women, another allegation which he strenuously disputed. The video
material
produced by the father was not intended as a form of "revenge porn" or to traumatise the
mother.
The father did so in order to defend himself against very serious allegations.
Mr
Tyler QC asserted that the
material
was relevant and that the balancing exercise in respect of other rights being asserted to
militate
against such evidence being admitted fell in favour of the father. Each piece of evidence served a specific and legitimate evidential purpose and the cumulative effect of the intimate image evidence, including that produced by the
mother,
was vital to the father's "defence". The father was entitled to reduce such relevant evidence as he chose in rebuttal to that produced by the
mother.
- On 6 April 2022, it was plain that, having reflected on the court's observations and on the views of the
children's
Guardian that some of the
material
may
be
managed
by alternative
means,
the father had reduced the intimate
material
he invited the court to review from 32 videos to 16 and the overall explicit
material
by
more
than 50%. Nevertheless the father submitted that the
mother
should not be permitted to withdraw any of the exhibits previously relied upon by her. It was important that all this evidence was viewed as the
mother
now sought to withdraw
material
once the deficits in her case had become apparent.
Mr
Tyler QC submitted that the
mother
sought to remove evidence which either did not support her case or supported the father's case that she had exaggerated,
misled,
or
manipulated
the evidence before the court. In summary, he asserted that the
mother
should not be permitted to sanitise her case at this stage of the proceedings.
- On behalf of the
child,
Mr
Woodward-Carlton QC adopted a
more
nuanced position. He submitted that the evidence needed to be relevant and probative. Even if it satisfied both these requirements, a proportionality evaluation should include, amongst other things, the vulnerability of the parties and the effect on them and on the fact-finding exercise as a whole. He suggested that there
may
be a range of alternatives to the viewing of sexually explicit
material
such as agreed transcripts of videos or data as to the timing of an individual image. Should the father be permitted to rely on intimate images to rebut the
mother's
allegations, the court should consider the proportionality with respect to the amount of
material
or the type of
material
relied upon. Thus, how
many
examples/types of what father purported to be the
mother's
sexual enthusiasm were required to
make
father's point about the absence of coercion and control within the couple's relationship?
Mr
Woodward-Carlton QC suggested that the court retained the option to review its initial decisions regarding admissibility depending on the way in which the hearing proceeded. What
might
seem to be unnecessary and undesirable at this stage
may,
in all the circumstances, turn out to be required after all albeit handled sensitively.
Analysis
- The deployment of intimate images, both
moving
and still, in these proceedings has been wholly un-boundaried and disproportionate. 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. 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. The first time on which the use of intimate images was raised with the court was in the skeleton argument filed by leading and junior counsel for the
mother
once permission to appeal had been granted by Judd J. At the
mother's
request, neither counsel nor the appellate court viewed the still or video intimate images save that Judd J viewed the video of the alleged rape in Spain.
- Turning to the detail, it is disappointing that, despite the exercise I invited the advocates to undertake, I was left unclear until 12 April 2022 as to the
mother's
final position with respect to her own intimate image
material.
The
mother's
written submissions on the revised table of explicit images relied upon by the father only dealt with that
material
rather than also addressing her own use of intimate images. It was also equally unhelpful that the
mother's
responses to
many
of the individual items in the revised schedule did not engage with the factual
matters
which the father sought to demonstrate and which were spelled out in the schedule. The repetition of the phrase "the Guardian has raised this as an exhibit which should not be viewed and the
mother
is in agreement with this" was a response which failed to engage with the issues which I had asked the parties to address.
Mr
Tyler QC's written submissions suggested that the
mother
maintained
the position that every explicit image on which she had previously sought to rely should be withdrawn and, by email on 12 April 2022,
Miss
Fottrell QC confirmed this to be the case.
- I was also told in the father's further written submissions accompanying the amended compromise schedule on 6 April 2022 that the
mother
had
made
proposals for the reduction of other exhibits relating to her criticism of the father's parenting. I do not know what those proposals were as I did not receive a schedule which addressed these exhibits. I
make
it clear that
my
consideration is limited to the intimate images relied on by each party. The
material
relating to allegations about the father's parenting remains in the bundle subject to any submissions
made
to
me
during the fact finding hearing.
- In approaching this exercise, I have had firmly in
mind
the court's powers to control the evidence the parties
may
seek to adduce in support of their respective cases. The relevance of the
material
to the allegations
made
by both parties and its probative value have been
my
starting point. I part company from
Mr
Tyler QC in that I do not accept that it will be rare for relevant evidence to be excluded. 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. For example, to persuade a court that a couple's sexual relationship was
mutually
satisfactory does not require the admission into the evidence of numerous still and
moving
intimate images of the couple having sex. However, I accept his submission that 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.
- 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 what is a case
management
hearing, I am in no position to determine
Miss
Fottrell QC's submissions either about the father's
motivation
for his deployment of intimate images or about his "sexual history" defence. Those
matters
are likely to be relevant at the fact finding hearing. Still less am I able to address the
mother's
submission that
much
of this
material
was taken without her consent. However, I agree with
Miss
Fottrell QC that the
mother's
sexual history and relationships with others is of no relevance when the focus of this hearing is her relationship with the father. I also accept 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.
- Turning to the detail of the
material
in dispute, these are
my
preliminary conclusions. I emphasise that the court can revisit these
matters
as the hearing progresses if it proves necessary to do so. All references are to the father's revised schedule.
- The following relates to the still images relied on by the father:
A) AMB4: the father can rely on this image to counter the allegation
made
by the
mother
of sexual control. I doubt it is necessary to view it if the
mother
accepts that which is set out in the father's revised position;
B) AMB6: relevant but not to be viewed;
C) AMB7: the probative value of this image is poor and on that basis it should not be admitted in evidence or viewed;
D) AMB9: relevant but need not be viewed if the
mother
accepts the first two factual issues in the schedule. It will be for the court to assess whether the
mother's
account of a sexually coercive relationship is accurate, having considered the evidential canvas as a whole;
E) AMB17: relevant but need not be viewed;
F) AMB20: relevant but need not be viewed;
G) AMB23: relevant but need not be viewed;
H) AMB49: relevant in that it relates to the alleged rape in Spain but need not be viewed;
I) AMB120: the relevance of this image is doubtful given that the
mother
now accepts consensual sexual behaviour took place within the couple relationship. It should not be admitted into the evidence;
J) AMB121 and 122: relevant to the father's case that the
mother
has sought to
manipulate
the evidence. The
material
does not need to be viewed to
make
that point.
- The following relates to the video evidence relied on by the father:
A) AMB3V: this is irrelevant and thus inadmissible;
B) AMB5V: given the
mother's
admission that she has used sexual language, this image is both irrelevant and thus inadmissible;
C) AMB18V/AMB19V: this
material
is in rebuttal of a video relied on by the
mother.
Given that the
mother
now accepts consensual sexual behaviour in the relationship, I doubt this
material
is relevant but it
may
be if the
mother
continues to rely on her own video. For the time being, it is relevant but will not be viewed;
D) AMB21V: given the
mother's
concession that she videoed the father
more
than once, this is irrelevant and need not be viewed;
E) AMB22V/AMB24V: given the
mother's
concession about consensual sexual relations, the relevance is doubtful but should remain in the bundle to rebut the
mother's
video evidence/account if she continues to rely on the same. These videos do not need to be viewed;
F) AMB26V: relevant but need not be viewed;
G) AMB27V: relevant but need not be viewed unless there is dispute about its contents. The parties should agree a description and transcript;
H) AMB28V: irrelevant given the
mother's
concession about consensual sex;
I) AMB29V: relevant and it is accepted that a transcript can be agreed;
J) AMB30V: it is said that this video is relevant to the father's sexually compulsive behaviour and his controlling behaviour. I struggle to see that it is given the
material
in the schedule. If the
mother
continues to rely on her video evidence, this
material
might
be relevant in rebuttal;
K) AMB31V: relevant to show the alleged
manipulation
of the evidence by the
mother
but need not be viewed. The parties are to agree a description and transcript;
L) AMB32V: see above in relation to AMB31V;
M)
AMB33V: relevant in rebuttal of
mother's
video evidence but I doubt it need be viewed if the
mother
does not rely on her relevant intimate videos;
N) AMB34V: this
material
relates to the same sexual encounter as AMB33V. It is irrelevant and need not be viewed;
O) AMB35V: irrelevant and need not be viewed given the
mother's
concessions;
P) AMB36V: relevant but need not be viewed. The parties should agree a description and transcript;
Q) AMB37V: this is irrelevant given the concession about consensual sex;
R) AMB38V: irrelevant given the concession about consensual sex;
S) AMB39V: relevant but, as it is the language used which is said to be important, it can be dealt with via a transcript rather than being viewed;
T) AMB40V: relevant but can be dealt with by an agreed description;
U) AMB41V/AMB43V: irrelevant given the concession about consensual sex;
V) AMB44V: the
mother
has accepted filming sexual encounters with the father on
more
than one occasion. I doubt it is necessary to view what is consensual sexual activity but accept that this
material
is relevant. A description can be agreed;
W) AMB46V and AMB47V: relevant given these are recordings of an alleged rape. They will need to be viewed;
X) AMB48V: irrelevant given the concession about a consensual sexual relationship;
Y) AMB51V: relevant but need not be viewed. It can be dealt with by an agreed description;
Z) AMB52V: irrelevant given the concession about a consensual sexual relationship;
AA) AMB53V: irrelevant given the concession about a consensual relationship
BB) AMB54V: relevant but a description can be agreed. It is not necessary to view this;
CC) AMB55V: this is irrelevant and need not be viewed;
DD) AMB111V/116V: relevant and should be viewed as it relates to
M;
EE) AMB9-V3: this can be dealt with by
means
of an agreed description.
- The
mother
has filed intimate images but, after the hearing on 29-30
March
2022, it was unclear to
me
whether she
maintained
that this
material
should also be excluded. By an email from
my
clerk on 8 April 2022, I asked
Miss
Fottrell QC if she now contended that all the intimate images the
mother
had introduced into this litigation should be excluded. Irrespective of the
mother's
position,
Mr
Tyler QC submitted that this
material
should remain in the bundle, not least to demonstrate that the
mother
had exaggerated and
manipulated
the evidence in this case. I received a response from
Miss
Fottrell QC on 12 April 2022, confirming that the
mother
no longer sought to rely on the intimate images produced by her and listed in the schedule prepared by Dr Proudman (appended to the skeleton argument produced for the hearing in late
March
2022). She requested that this
material
should not form part of the evidence and should not be viewed by the parties or by the court.
- The difficulty with
Miss
Fottrell QC's position is that the
mother's
schedule only lists
moving
images and not still images so it is unclear to
me
whether she continues to rely on still images of an intimate nature. However, her submissions in the skeleton argument are couched in respect of both still and
moving
intimate images (see paragraph 30 of her skeleton argument). This lack of clarity in her position
makes
it exceptionally difficult for the court to adjudicate on the
mother's
application with respect to intimate images produced by her. I have – with regret – decided that it would be unfair to either parent to do so at this stage.
- Because the detailed exercise – like that undertaken with respect to the father's intimate images - which should have been undertaken in relation to the
material
produced by the
mother
has not been done, I have decided that the intimate
material
produced by the
mother
should remain in the bundle and form part of the evidence, but that I will not view the
material
unless it is essential to do so. I direct that the parties collaborate to produce a schedule identifying these images together with a brief description and explanation of each item's relevance to the issues I am required to determine and whether there are alternatives to viewing the images. This schedule should be available at the start of the fact finding hearing.
- I also direct that, unless it is essential to do so, no intimate images – be they still or
moving
- which are to be viewed will be viewed in the courtroom with all the parties present. Further, this
material
will only be viewed by the advocates acting for each party together with instructing solicitors. The parties are to co-operate in the production of an agreed, password protected bundle of such
material
and to agree transcripts where I have indicated they should do so.
The Use of Intimate Images: General Observations
- It will be apparent to readers of this judgment that I have grave concerns about the use of intimate images in private law
children
proceedings where allegations of abuse, specifically domestic abuse, are
made.
I perceive 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. In this case, the volume of intimate images previously admitted without any scrutiny is itself 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.
- During the hearing on 29-30
March
2022, I
made
a number of observations as to how intimate images should be
managed
within the context of private law
children
proceedings and invited counsel to collaborate to produce some agreed guidelines. I am grateful to them for doing so. What follows is drawn from their written document which incorporated the observations I
made
during the hearing:
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).
- I recognise that judges dealing with private law
children
proceedings in which allegations of domestic abuse are
made
already face significant difficulties stemming both from the volume of such work within the family justice system and from the reality that
many
parties are unrepresented.
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.
Participation Directions
- Following receipt of the report of Dr Jones, there was happily a large
measure
of agreement as to the participation directions which the court should
make
for the
mother's
benefit as a vulnerable witness. I should point out that the father does not accept that the
mother
has been traumatised by anything to do with their relationship, their sexual relationship or his behaviour. His belief is that the
mother
is very angry with him and is
maliciously
motivated.
As
Mr
Tyler QC put it in his skeleton argument, the
mother
"has had
many
months
to perfect a narrative which suits her objectives but which the father refutes in its entirety".
- All the parties were agreed that the
mother
should have the benefit of an intermediary throughout the hearing (including when she is giving her oral evidence). An intermediary with experience of working with those affected by trauma has been identified and she is available to support the
mother
during her oral evidence. She
may
not be available throughout the hearing due to other commitments but can arrange cover so that the
mother
is appropriately supported by an alternative intermediary. All are also agreed that the
mother
should have the services of a consistent interpreter and arrangements will be
made
with HMCTS for this to happen.
- The
mother
met
with the intermediary and a report was produced by that person which is dated 31
March
2022. The suggestions of that report are agreed by the advocates save for one
matter
which I address below.
- Additionally, the following participation directions were accepted by the father:
a) The
mother
not coming into direct or indirect contact with the father during the hearing or in the court precincts;
b) The father not being able to see the
mother
whilst she gives her oral evidence;
c) The
mother
being afforded regular breaks during her oral evidence including additional breaks if the
mother
should display signs of "trauma related distress";
d) Exposure to areas/topics of questioning in advance of cross-examination;
e) The avoidance of unnecessarily intrusive questioning regarding allegedly traumatic experiences;
f) And the avoidance of unnecessary exposure to trauma-related
material.
-
Miss
Fottrell QC sought additional participation directions which were not agreed and I deal with each of these in turn. In doing so, I have been
mindful
of the need to ensure that the
mother's
participation in the proceedings is not diminished by reason of her vulnerability.
- First, she sought a limit on the time available to the father to cross-examine the
mother.
Mr
Tyler QC accepted that, with allowances for
many
breaks, he thought the
mother's
evidence would take some three days to complete. I thought that time estimate was realistic given the agreed participation directions and the vulnerabilities identified by Dr Jones. To go further and impose a time guillotine runs the risk of unfairness in that the father
may
not be able to advance his case fully, for example, by responding to developments in the
mother's
oral evidence. I refuse this participation direction sought on behalf of the
mother.
- Second,
Miss
Fottrell QC invited
me
to require that the father's advocate should submit written questions in cross-examination in advance to the intermediary who would then have an opportunity to consider these with the
mother.
I understood
Miss
Fottrell QC to suggest that, each evening prior to being cross-examined on behalf of the father, the father's advocate would submit to the intermediary written questions to be used during cross-examination at the next day's hearing. The intermediary would then consider these with the
mother.
It was submitted that this process would assist the
mother
in
managing
her emotions and enable her to give her best evidence.
-
Mr
Tyler QC objected strongly to this proposal and it was not supported by
Mr
Woodward-Carlton QC. Both pointed to the recommendations of Dr Jones' report which did not recommend that the
mother
had advance knowledge of the questions she was to be asked. Such a process provided no leeway for the father's advocate to respond to the
mother's
answers and the reduction of every question to writing in this
manner
was an almost impossible exercise. Further, it was an artificial exercise if the
mother
was effectively to rehearse her oral evidence with the intermediary the night before. Doing so ran the risk that the
mother
would be doubly traumatised by this process, once by thinking about and discussing the question the night before and then by answering it the following day. Providing the
mother
with topics/areas of cross-examination in advance coupled with the avoidance of exposure to trauma related
material
or unnecessarily intrusive questioning about allegedly traumatic experiences gave her a sensible route
map
for what she was to be asked on behalf of the father.
- Where a vulnerable witness is to give oral evidence, advocates should adapt to the needs of that witness and not the other way round, as long as a fair process is
maintained.
Here, the
mother
will have considerable support available to her from an intermediary who will be able to intervene if a question is confusing or complex and who can
monitor
the
mother's
demeanour as she gives her evidence. It is also agreed that the advocates asking questions of the
mother
will conduct themselves in a way which does not cause the
mother
unnecessary upset, for example, by asking unnecessarily intrusive questions about allegedly traumatic experiences. She will also know the topics/areas of questioning in advance. Those participation directions address the
mother's
vulnerabilities whilst permitting a fair exploration of the father's case. I note that Dr Jones has not recommended that the
mother
be shown written questions in advance by her intermediary.
- Leaving aside the objections raised by the father and the
children's
Guardian, the course recommended by
Miss
Fottrell QC would have the effect of significantly elongating the
mother's
time in the witness box. It is trite to say that the questioning of witnesses is a dynamic process but every advocate and judge recognises that reality. In order to respond to the
mother's
answers and then compose or adapt written questions, the father's advocate would need to be given extra time to do so during the court day and at the conclusion of the
mother's
evidence. Time would also need to be allowed for the intermediary to consider and then discuss questions with the
mother
at a sensible time so that the
mother
could rest after the court day. Realistically, the court would only hear evidence in the
morning
and then adjourn for the rest of the day. In that scenario, the
mother
would likely spend at least 6 days giving her evidence which I cannot envisage would benefit her emotionally or allow her to give her best evidence to the court. The effect on the court timetable would be significant and result in this case likely taking 13 or 14 days to complete rather than the 10 days presently allotted. It would result in an adjournment either for
many
months
before I could accommodate it part-heard or force the adjournment of other cases which have been waiting a long time for their determination. That would not benefit
M
or her parents who need this fact finding hearing to take place as soon as possible and it would disadvantage other
children
and their families who require scarce High Court judge time. Whilst certain aspect of the process suggested by
Miss
Fottrell QC
may
well be needed in cases involving a witness with cognitive limitations or a young
child,
this case does not, in
my
view, require participation directions of that type.
- Given the concerns set out above, I accept the submissions
made
by
Mr
Tyler QC and
Mr
Woodward-Carlton QC and refuse the application
made
by
Miss
Fottrell QC. I
make
it plain that I will be astute to ensure that the participation directions I endorse are adhered to at the trial. In that regard, I add that there will be a direction that the
mother
will not be asked the same questions in cross-examination by
more
than one advocate without both justification and
my
express permission. If questions are convoluted and not straightforward and depart from the suggestions
made
in the intermediary's report, I will intervene to ensure they are reformulated in a
manner
understandable by the
mother.
The person who is to take the lead in cross-examination will be the father's advocate.
- The intermediary suggested that the advocates who plan to question the
mother
should "review their questions" with the intermediary in order to reduce the linguistic processing required by the
mother.
The intermediary
made
some helpful suggestions for the
manner
in which questions should be adapted. Having considered the proposal for questions to be reviewed, this appears to involve the same reduction of questions to writing in advance of cross-examination together with time being required for the intermediary to review this
material
with the advocate concerned (though not apparently with the
mother).
This strikes
me
as cumbersome in circumstances where the intermediary has provided helpful suggestions for how questions are to be formulated and where she can intervene to ensure a question is asked in a
manner
which assists the
mother
to respond clearly.
-
Miss
Fottrell QC also asked
me
to direct that the
mother
should not be referred to as a sex worker or "cam girl" but instead as either a prostituted woman or as a woman formerly subjected to the sex trade. It was submitted that referring to the
mother
as a sex worker legitimised a highly abusive sex trade. I did not hear specific objections to this use of language by either
Mr
Tyler QC or
Mr
Woodward-Carlton QC and so I am content for the
mother
to be described in either of the ways she suggests.
- Finally,
Miss
Fottrell QC submitted that the
mother
should not be questioned about her sexual experiences with or abuse by other
men
or her involvement in the sex trade. She drew attention to Judd J's observations in paragraph 67 of the appeal judgment to the effect that cross-examining the
mother
about explicit
material
from her time in the sex trade
merely
to establish she knew the
meaning
of some swear words
may
have been unnecessary. She submitted that, in those respects, the
mother's
sexual history was irrelevant to the allegations in this case.
Miss
Fottrell QC submitted that PD12J did not adequately address the disclosure of a complainant's sexual history or behaviour and did not support a
modern
approach to the consideration of a complainant's sexual history.
Miss
Fottrell QC noted the provisions of section 41 of the Youth and Criminal Justice Act 1999 which prohibits the use of a complainant's sexual history without the court's permission and suggested that the unqualified use of a complainant's sexual history in the family court could have the effect of discouraging victims from raising allegations which
may
be central to a
child's
welfare.
- In this case, I am persuaded that questioning about the
mother's
previous sexual history or behaviour is irrelevant to the allegations which the court has to determine and thus direct that this topic is not to be pursued in cross-examination. I decline to accede to what I think was an invitation to provide some bright lines guidance on this topic as there
may
be some very limited circumstances in other private law
children
proceedings in which previous sexual history
may
be an issue of relevance.
Transcripts of the First Instance Decision
- The father contended that the judgment from the first fact finding hearing should be included in the trial bundle.
Mr
Tyler QC submitted that, even though this court
must
undertake the fact-finding exercise afresh, unencumbered by a previous judge's findings, it could not be ignored that the process took place; that evidence was given by various witnesses; or that the entire proceedings were comprehensively described in writing by the first instance judge. In essence, he contended that it would be entirely artificial to remove from this court the advantage of knowing what was said and done during a previous trial.
- Both
Miss
Fottrell QC and
Mr
Woodward-Carlton QC submitted that, given the conclusions of Judd J as to procedural unfairness during the first fact finding hearing, together with her comments about the
mother's
vulnerabilities and the implications arising from the lack of participation directions, the judgment given in the first fact finding hearing was tainted by the failings found on appeal and should not form part of the trial bundle before
me.
- The appeal judgment contains information about the conduct of the first instance hearing together with a detailed analysis of the findings in paragraphs 30-38. Though there is presently no agreed case summary, that deficit will be rectified by a direction from
me
in the case
management
order resulting from this hearing. The appeal judgment together with an agreed case summary will provide all the necessary factual information about the first fact finding hearing. Further, I accept the submission
made
by the
mother
and the
children's
guardian that the judgment in the first fact finding hearing was vitiated by reason of procedural unfairness. Given those considerations, it is difficult to see any circumstance in which it would be appropriate for the first fact finding judgment to form part of the trial bundle before
me.
Hence, I direct that the first fact finding judgment should not form part of the future trial bundle.
Transcripts of Evidence from the December 2020 Hearing
- I understand from the submissions
made
by
Mr
Tyler QC that the witness evidence given at the first fact finding hearing has been transcribed and is available for inclusion in the future trial bundle. Oral evidence was given by the
mother,
the father, the
maternal
grandmother, the paternal grandmother and the father's adult son.
- The father submitted that, although a successful ground of appeal was the procedural unfairness caused by the failure to
make
participation directions in respect of the
mother's
evidence, it could not possibly be said that none of could be treated as relevant. If, at the second fact-finding hearing, the
mother
gave inconsistent evidence on any important factual
matters,
the father was entitled to explore any inconsistency during cross-examination. Whilst it would be open to the
mother
to seek to explain any inconsistency by reference to the procedurally compromised nature of the first fact finding hearing, it would be unfair to the father to exclude the transcripts of evidence.
Mr
Tyler QC submitted that the transcripts of evidence should be included and referred to as necessary. Any party should be able to object to or to seek to explain any particular issue arising from the transcript
material
as it arose during the course of the second fact-finding hearing.
- Both the
mother
and the
children's
Guardian opposed the inclusion of the transcript evidence into the future trial bundle. In circumstances where an appellate court had concluded that the trial process had been tainted by the failure to consider and
make
participation directions for the
mother's
benefit, both submitted that the transcript evidence as a whole could not be relied upon during any rehearing.
- The
mother
did not have the benefit of participation directions during the first fact finding hearing. In circumstances where an appeal judgement found that the failure to abide by the procedural rules with respect to the
management
of the
mother's
evidence was so serious that all the court's findings could not be
maintained,
it is difficult to accept that the transcript of the
mother's
evidence has anything to offer a court rehearing the allegations in dispute.
My
concerns about the inclusion of the transcript of the
mother's
evidence are reinforced by the expert report from Dr Jones. Not only does her report highlight the linguistic difficulties the
mother
may
have had – in immensely stressful circumstances whilst in the witness box and when assisted by an interpreter – in spontaneously sourcing words and conveying
meaning
but it also highlights the
manner
in which her then unrecognised vulnerabilities
may
have impacted on her oral evidence. Dr Jones proposed a wide ranging suite of participation directions, the vast
majority
of which are agreed by all the advocates as necessary for the
mother
to give her best evidence. If those
measures
are necessary now, their absence at the first fact finding hearing emphasises the caution with which this court should approach any consideration of the transcript of the
mother's
evidence.
- I recognise that, as
Mr
Tyler QC submitted, it is part and parcel of the forensic process to compare and contrast an earlier account of an incident with one given later for, in so doing, inconsistencies and evasions
may
become apparent and so inform the court's assessment of a witness's credibility. Indeed, the father will have ample opportunity to undertake precisely that exercise by reference to the
mother's
written evidence (amounting to some 10 statements). Reference to the transcript of the
mother's
evidence either to highlight inconsistencies in submissions or to put inconsistencies to her during cross examination is of
marginal
benefit given the difficulties with that evidence to which I have already referred. Further, there is a real danger that any second hearing would be derailed by submissions as to probative weight and fairness on each and every occasion that the father's advocate sought to deploy
material
from the transcript of the
mother's
evidence at the first hearing. Thus, for all of those reasons, I direct that the transcript of the
mother's
evidence should not be placed in the trial bundle as little if any probative value can be ascribed to it.
- What of the transcripts of the evidence given by the other witnesses at the first hearing? The appeal judgement
made
no criticism of the arrangements
made
in respect of the other witness evidence and so it
may
be thought that transcripts of that evidence should be available to this court at the future fact-finding hearing. However, that is to
misunderstand
the effect of the profound procedural unfairness relating to the
mother's
evidence on the evidence of all the other witnesses. The evidence given by the
mother,
contaminated by procedural unfairness, will have impacted upon the questions put to other witnesses and the answers that other witnesses gave. The entire process has thus been contaminated by the unfairness occasioned by the failure to take account of the
mother's
vulnerabilities and to
make
the necessary participation directions. If it were otherwise, there would be no need to hear the witness evidence of
most
of the other witnesses, save in respect of any new allegations now advanced. Were the transcripts of the other witness evidence to be contained in the trial bundle, the same danger of derailing the hearing with submissions as to probative weight and fairness which I identified with respect to the
mother's
evidence would also apply to the transcript evidence of the other witnesses. Hence, I direct that the transcript evidence given by the other witnesses should not be placed in the trial bundle.
Statement from the Father's Former Wife
- The father submitted that he should be permitted to file a statement from his former wife as to their sexual relationship to counter the allegations
made
by the
mother
of coercion and control, sexual violence and the father's arousal from non-consensual sexual activity. With the greatest respect to
Mr
Tyler QC, I cannot see how such a statement would assist the court to come to a view about the dynamics of the sexual relationship between the father and the
mother.
A person
may
behave very differently with one partner than he or she does with another and, furthermore, sexual experiences/behaviour after a relationship has ended
may
shape the sexual experience with a new partner in a
manner
quite different to that in a former relationship. In his statements, the father does not seek to lay the foundation for the admission of a statement from his former wife by, for example, explaining that his sexual conduct or experiences with his former wife was similar to those he allegedly had with the
mother.
The probative value of evidence from his former wife struck
me
as limited and I thus decline to direct the statement sought by
Mr
Tyler QC.
- For the avoidance of doubt, the father is permitted to file a further statement from his other adult son who was said to have been present in the house when the
mother
was allegedly raped and screaming in pain.
Conclusion
- The timely delivery of this judgment has been hampered by the need for counsel to assist the court by scrutinising the schedules of intimate images; and by waiting for a response from the
mother's
legal team. When that response was eventually forthcoming on 12 April 2022, I was on leave out of the jurisdiction.
- That is
my decision.