Private Law
April 2022

Overview: The appellant father in private law family proceedings was the subject of findings of serious criminality by Hayden J, including rape of the mother of their two children: [2021] EWFC 4. The mother seeks an order that the father should be deprived of parental responsibility; the father seeks an order for contact [para 2]. In advance of the substantive hearing on the outstanding issues the father applied for an order: "… that any statements or admissions made by him in the proceedings, in reference to the findings that have been made by the court, will not be disclosed to the police (or, by extension, to the CPS)." The father's application was heard on 17 November 2021 and was refused in a judgment handed down on 23 November 2021: [2021] EWHC 3133 (Fam). In granting permission to appeal Peter Jackson LJ invited the Director of Public Prosecutions to intervene in the appeal.

The essence of the argument for the blanket advance protection sought by the father was that the proceedings determining the arrangements for the children will not be fair unless he incriminates himself and is given the protection he seeks. It was submitted on behalf of the father that otherwise "the position is neither 'fair', within the meaning of Article 6 ECHR and the Overriding Objective, nor is it in the best interests of the subject children within the meaning of s.1(3) Children Act 1989." [para 4]

The judge dismissed the father’s application, first on the basis that it was premature to consider a question of disclosure to the police without knowing the content of any statement or admission in respect of which the question arose; and secondly that it was inappropriate to fashion the wide protection sought by the father by analogy with the more limited protection provided in public law family proceedings by section 98 of the Children Act 1989 ("the 1989 Act") [para 5]:

"98 Self-incrimination

(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from –

a. giving evidence on any matter; or

b. answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury."

Parts IV or V of the 1989 Act respectively concern public law family proceedings and child protection measures. Parliament has thus removed for those proceedings the privilege against self-incrimination and replaced it with a restriction on the use that can be made of an incriminating statement or admission. To that extent it offers some protection but, whilst preventing the admissibility of such material in criminal proceedings, it does not otherwise preclude its use by the prosecuting authorities. Subject to orders by the Family Court preventing disclosure to the prosecuting authorities such statements or admissions are capable of being used for the purposes of a criminal investigation. It follows that the protection being sought by the father in these private law proceedings is greater than that provided by Parliament in public law proceedings [para 6].

The privilege against self-incrimination: The privilege against self-incrimination, also referred to as the right to silence, is a common law right that emerged in the 17th century after the abolition of the Star Chamber. It prevents a person, on pain of punishment, from being required to give evidence against himself. The privilege was restated (other than for criminal proceedings) by section 14 of the Civil Evidence Act 1968 [para 7]. The privilege against self-incrimination may be overborne only by Parliament: Rank Film Distributors Ltd. v. Video Information Centre [1982] AC 380 [para 8].

Background: The parents separated in 2017, when the mother was expecting their younger child. At the time of the separation, the mother went to the police, making serious allegations about the father's behaviour towards her, but no prosecution followed. The father applied for contact and the mother made the same allegations in response. The father then entered a second relationship in which it was alleged that he had behaved in a strikingly similar way. The mother successfully appealed an order that evidence relating to the second relationship should not be admitted: [2020] EWCA Civ 1088. Hayden J then conducted a fact-finding hearing, leading to a judgment given in January 2021. He found that during the four years of the parents' relationship the mother had been subjected to a brutalising, dehumanising regime, and that the father had behaved in a similar way in his second relationship. Among his findings was that the father had raped the mother. He described the father as a young man who is profoundly dangerous to vulnerable women and to children. The judgment was disclosed to the police as permitted by the Family Procedure Rules 2010 PD12G 2.1 [para 10]. The mother issued an application for the removal of the father's parental responsibility and for permission to disclose documents from the proceedings to the police in due course.

Reasons for rejecting the father’s application: On behalf of the father, it was submitted that the court should rule that: "any statement or admission that he makes (if any) will not be disclosed to the police. By removing the prospect of F incriminating himself in that way, both parents will have the opportunity for full engagement within the court process, and the proceedings will operate most effectively in the best interests of the children" [para 13]. The judge noted that he was being asked to make this ruling prospectively and without knowing what, if any, admissions the father was contemplating making. He declined to evaluate the application in "an evidential vacuum" as to do so would be to fetter his discretion to consider questions of disclosure in respect of unknown material. He surveyed the legislation and case law and concluded that the father's application sought "wholescale pre-emptive protection". In rejecting the application, he noted that this would afford the father greater protection than that provided in public law proceedings by section 98 of the 1989 Act [para 14]. The father's alternative submission was that the court should afford him similar protection to that provided by section 98 which would prevent incriminating statements or answers being admitted as evidence in criminal proceedings but not preclude their disclosure to the police. The judge rejected that submission, noting that Parliament distinguished between public and private law proceedings. Although the consequences of orders made in private law cases may be far-reaching, public law cases involved interference by the state including the removal of children from their families and even adoption. The judge did not consider it open to the court in effect to legislate for private law proceedings when Parliament had not done so [para 15].

Disclosure to third parties in family proceedings: Proceedings under the Children Act 1989 and the Adoption and Children Act 2002 are heard in private. It is a contempt to publish information relating to them: Administration of Justice Act 1960, section 12. However, Rule 12.73 of the Family Procedure Rules 2010, permits the communication of information where the court gives permission or where the communication takes place in one of the circumstances listed in Practice Direction 12G [para 16].The principles on which the court decides whether to give permission to disclose information from family proceedings were set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (also reported as Re EC (Disclosure of Material) [1996] 2 FLR 725) at [85]. In Re AB (Care Proceedings: Disclosure of Medical Evidence to Police) [2002] EWHC 2198 (Fam); [2003] 1 FLR 579, Wall J affirmed that Re C does not create a presumption in favour of disclosure. None of the factors set out in that case has a pre-determined importance, and the list is not exhaustive. The question in each case is which public interest should prevail on the particular facts. This well-established approach, predating the Human Rights Act 1998, was recently endorsed in Re M [2019] EWCA Civ 1364 at [68] to [70]. It provides a filter on the outgoing disclosure of information from public and private law children cases in a manner that is sensitive to the article 6 right to a fair hearing [para 19].

In Re D and M (Disclosure: Private Law) [2002] EWHC 2820 (Fam); [2003] 1 FLR 647 the father admitted to the court that he was having a consensual sexual relationship with his half-sister. Applying Re C, Hedley J declined to allow disclosure to the police, but permitted disclosure to the relevant local authorities on condition that there would be no further disclosure without leave of the court. In relation to disclosure to the police, he found that the father's frankness with the court without the protection of section 98(2) weighted heavily, that a criminal prosecution would not be in the interests of the children, and the public interest did not require other factors against disclosure to be overridden.

Discussion: The Court of Appeal determined that the judge was right to dismiss the father’s application [para 31]. The application failed, first, because the judge was unwilling to entertain a blanket application in respect of hypothetical incriminating statements or evidence. Even assuming in the father's favour that the court could fetter its later discretion to consider questions of onward disclosure when it possessed knowledge of the detail of what might be disclosed, the Court of Appeal found it almost impossible to envisage a situation in which it would be proper for it to do so [para 32].

The submission the Court of Appeal was concerned with devolved to the proposition that a party to family proceedings such as this father can only take part in those proceedings fairly and compatibly with his rights under article 6 of the Convention if he is immunised from the possibility of the use in criminal proceedings of admissions or incriminating evidence. The Court of Appeal’s view was that the overriding objective in the Family Procedure Rules and section 1 of the 1989 Act give no purchase to this submission. It was perceived that the father seeks greater protection than accorded by Parliament to those in public law proceedings because he does not suggest that he should be stripped of his privilege against self-incrimination [para 38]. The Court of Appeal’s view was that the order which the father seeks relying on article 6 of the Convention is an attempt to establish a new principle of Convention law which goes beyond the "clear and constant jurisprudence of the Strasbourg Court". As indicated recently in DPP v. Cuciurean [2022] EWHC 736 (Admin), it was highlighted that "It is clear from the line of authority which begins with R (Ullah) v. Special Adjudicator [2004] 2 AC 323 at [20] and has recently been summarised by Lord Reed PSC in R (AB) v. Secretary of State for Justice [2021] 3 WLR 494 at [54] to [59], that this is not the function of a domestic court." The Court of Appeal found that in making the argument, the father is not seeking a privilege not to incriminate himself but a privilege to self-incriminate with absolute protection as to the consequences. Thus, the father's submission risks undermining aspects of the rule of law and giving no weight to the public interest in the conviction of those guilty of serious criminality.

The Court of Appeal was satisfied that the approach to disclosure from the family proceedings found in Re EC (Disclosure of Material) provides appropriate protections and ensures that the family law proceedings would, in this respect, be fair.

Overview: Mrs Justice Knowles’ judgment 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 [para 3].

Having allowed the mother's appeal (M (A Child) [2021] EWHC 3225 (Fam)), Judd J remitted these proceedings to Mrs Justice Knowles for case management and rehearing. On 8 December 2021, Mrs Justice Knowles 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.

Background: 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. 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 schoolgirls. Additionally, the father was said to have shown controlling, manipulative and intimidating behaviour towards the mother throughout their relationship. 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 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.

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. 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 [para 16].

The Law: 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)) [para 30]. 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.

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 - Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. 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) [para 33].

It was noted that 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 [para 35].

Vulnerable Witnesses and 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 [para 36]. 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).

Schedule of Allegations: At the directions hearing on 8 December 2021 Mrs Justice Knowles made specific provision for the mother and the father to respond to each other's case management document describing their respective allegations. After some delay the mother's response to the father's schedule of allegations was received on 12 April 2022. Mrs Justice Knowles warned that 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 the 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 [para 45].

Intimate Images: Mrs Justice Knowles provides a definition of "intimate image" in the context of private law proceedings: “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” [para 47].

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. 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. In rebuttal, the father exhibited 32 videos to his statement.

Mrs Justice Knowles highlighted that 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. 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 [para 55].

Mrs Justice Knowles directed for the parties to address the use of intimate images which required the mother and the father to append to their respective skeleton arguments a schedule to identify why this material was relevant [para 56]. It was submitted on behalf of the mother that the intimate images submitted by both parents should not be disclosed into the proceedings because these were irrelevant. 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 [para 58]. On behalf of the father, it was 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. On behalf of the child, it was 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. It was 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 [para 62].

Analysis: Mrs Justice Knowles found that the deployment of intimate images, both moving and still, in these proceedings has been wholly un-boundaried and disproportionate [para 63]. In approaching this exercise, Mrs Justice Knowles stated that she firmly had in mind the court's powers to control the evidence the parties may seek to adduce in support of their respective cases [para 67]. 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. 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 [para 68]. 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 had not been done, Mrs Justice Knowles decided that the intimate material produced by the mother should remain in the bundle and form part of the evidence, but that she will not view the material unless it is essential to do so [para 74]. Mrs Justice Knowles also directed that, unless it is essential to do so, no intimate images 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 [para 75].

The Use of Intimate Images - General Observations: Mrs Justice Knowles voiced grave concerns about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made. Mrs Justice Knowles perceives 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 [para 76]. Mrs Justice Knowles collaborated with counsel to produce the following agreed guidelines as to how intimate images should be managed within the context of private law children proceedings [para 77]:

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).