Private Law Update: May 2022
Index of Cases
- M (A Child – Private Law Proceedings – Case Management – Intimate Images)  EWHC 986 (Fam) – M appealed a judgment that had been handed down by Mrs Justice Knowles on the basis she did not have appropriate participation directions and insufficient consideration being given to the potential of M being vulnerable in the relationship with F. A fact-find was re-listed and Mrs Justice Knowles made detailed directions. Following a re-hearing, the Court provided guidance on how intimate images should be managed in private law proceedings.
- B v P  EWFC B18 – A successful appeal of a decision of District Judge Miles in proceedings relating to a fact-find hearing concerning two children. The Appeal was allowed as the Judge failed to give the appropriate consideration to practice directions, leading case law and engaged in procedural irregularities.
- XZ v YZ  EWFC 49 – Mr Justice Mostyn decided to grant an interim Reporting Restriction Order until the Court had heard all of the evidence and assessed whether the husband would be prejudiced by the reporting of such evidence, and whether in fact the press would oppose the making of such an order after hearing the evidence. When the case was due to conclude, the Court would consider the application in full and apply the full balancing test at that stage.
M (A Child – Private Law Proceedings – Case Management – Intimate Images)  EWHC 986 (Fam)
Judgement handed down by Mrs Justice Knowles
M appealed a judgment that had been handed down by Mrs Justice Knowles on the basis she did not have appropriate participation directions and insufficient consideration being given to the potential of M being vulnerable in the relationship with F. A fact-find was re-listed and Mrs Justice Knowles made detailed directions. Following a re-hearing, the Court provided guidance on how intimate images should be managed in private law proceedings.
Background: The Mother (M) and Father (F) met when F was a client of an online sexual service and M was formerly subjected to sex trade. In 2019, four weeks after the child was born, the parties separated. The Mother proceeded to remove the child to her home country, however, there was an order for her to return and she did. The M then issued an application for leave to remove and the F issued an application for a child arrangement order.
There were directions hearings in March 2020 and July 2020, however, there were no orders referred to participation directions and there was no ground rules hearing for the fact find. During the fact find, the M alleged the F had raped her when she was pregnant, he had behaved in appropriately with the child and had carried out violent conduct during sexual intercourse, among other allegations. The F alleged that the M had wrongfully removed the child and had caused the child harm as a result. Additionally, F alleged that M was controlling, had used abusive language to the child and had subjected the child to unnecessary surgery on her labia.
On 8th December 2020, the Judge rejected allegations of rape and found that she fabricated those allegations to improve her application for leave to remove. The Judge also rejected the allegation that the M had controlled F’s time spent with the child. It was accepted that removing the child from the jurisdiction had the potential to cause harm to the child as a result of lack of contact with F.
The M appealed this judgment on two grounds:
- She did not have the benefit of participation directions;
- The Judge had given insufficient consideration to the possibility that M may have been over-dependent on F or vulnerable in the relationship.
The appeal was successful and the matter was remitted to Mrs Justice Knowles In December 2021. Mrs Justice Knowles made detailed directions about intimate images and other disputes issues and a re-hearing was listed.
The Court heard from Dr Jones, a clinical psychologist, in relation to participation directions. It was recommended that the M should have the services of a consistent interpreter, that she should not come into contact with F during her evidence, she should not be exposed to trauma related material, she should be made privy to areas of questioning in advance and she should be given frequent breaks. Dr Jones had reported that the M was experiencing symptoms of complex post-traumatic stress disorder and that she had a depressive disorder with comorbid anxiety. In respect of the intimate images that were to be a subject of the hearing, Dr Jones recommended the judge alone asking questions about them and if any advocates were to cross-examine, then it should be limited to only one advocate. The F was sceptical about the M’s actual vulnerability and considered that she now had a significant tactical advantage.
Judgment – the deployment of intimate images had been wholly un-boundaried and disproportionate. At no stage did the advocates or the Court consider the relevant and probative value of this material or the proportionality of using it within proceedings. It was not accepted that it will be rare for relevant evidence to be excluded. Mrs Justice Knowles stated that evidence will be excluded if it is deployed in great amounts without justification or repeatedly addresses the same issue.
The relevant test of necessity should be generously applied at a pre-hearing stage, but it is not an open door to permit everything to bolster a case. The Court noted that the court must undertake a balancing exercise between F’s right to a fair hearing when faced with serious allegations and the M’s need to have a fair process which does not adversely impact her ability to give her best evidence as a vulnerable witness.
It was also noted that viewing a still image may have limited value, however, reviewing a small number of such images may have relevance and probative value in order to demonstrate that evidence has been manipulated, for example. Whether it is necessary to view them, is another matter entirely. Mrs Justice Knowles proceeded to make decision about the proposed images, their relevance and whether they should be viewed.
Mrs Justice Knowles expressed her concerns about the increasing use of intimate images in private law children proceedings. The advocates were asked to collaborate and produce agreed guidelines as to how they should be managed in the future. Those guidelines were endorsed and can be found at paragraph 77 of the judgement (https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Fam/2022/986.html&query=(M)+AND+((A)+AND+(child))+AND+(EWHC)+AND+(986)).
Definition of intimate images 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…. both still and moving images.”
B v P  EWFC B18
Judgment handed down by HHJ Levy
A successful appeal of a decision of District Judge Miles in proceedings relating to a fact-find hearing concerning two children. The Appeal was allowed as the Judge failed to give the appropriate consideration to practice directions, leading case law and engaged in procedural irregularities.
Background: A (aged 9) and B (aged 7) were subject children to private law proceedings held before District Judge Miles. In December 2019, the Father (F) made an application for enforcement of a child arrangements order and the Mother (M) applied for a variation of that order whilst also making allegations of domestic abuse. A fact-finding hearing was held, however, there was no ground rules hearing, no consideration of special measures (Part 3A of the FPR, Practice Directions 3AA or 12J) and no consideration of the decision in Re H-N . The District Judge found most of the M’s allegations not proved and found most of the F’s allegations regarding the enforcement application proved.
M appealed the outcome of the fact-find on eight grounds:
- The Judge was wrong in failing to implement special measures pursuant to PD3AA and PD12J;
- The Judge erred in failing to apply PD12J of the FPR 2010, in particular the correct definition of coercive and controlling behaviour;
- The Judge failed to apply Re H-N  and failed to stand back and consider whether there was a pattern of coercive and controlling behaviour;
- The Judge minimised findings and the evidence that amounted to domestic abuse, instead referring to threats of harm and verbal abuse as “not ideally worded” and failed to address the impact of such abuse on M and the children;
- The Judge failed to address that the children are victims of domestic abuse pursuant to Section 3 of the Domestic Abuse Act 2021;
- The Judge was wrong in making findings which did not reflect the oral evidence given by the F and without taking into account all of the evidence in the round;
- The Judge failed to give adequate reasons for the findings made;
- The Judge finding that M breached the child arrangements order is wrong.
HHJ Levy allowed all eight grounds of appeal and found that the Judge’s findings could not stand. The application has been re-listed to be heard before a circuit judge.
Full Judgment can be found at: https://www.bailii.org/ew/cases/EWFC/OJ/2022/B18.html
XZ v YZ  EWFC 49
Judgment handed down by Mr Justice Mostyn
Mr Justice Mostyn decided to grant an interim Reporting Restriction Order until the Court had heard all of the evidence and assessed whether the husband would be prejudiced by the reporting of such evidence, and whether in fact the press would oppose the making of such an order after hearing the evidence. When the case was due to conclude, the Court would consider the application in full and apply the full balancing test at that stage.
Background: The husband (H) applied in Form D11 for a Reporting Restriction Order (RRO) in advance of a final hearing concerning the application of the wife (W) for financial remedies. W was said neither to oppose or support the application.
The Court noted that the scope of application for an RRO was put differently between the Form D11, written submission and the draft order.
Legal Framework: As concluded in the case of Xanthopoulos v Rakshina  EWFC 30, anonymization can only be imposed by the Court making a specific anonymity order in the individual case. Such an order can only be lawfully made following the carrying out of the ultimate balancing test referred to in Re S. The default starting position should be open justice, which means litigants should be named in any judgment even if it is painful and humiliating for them.
The balancing test refers to the balance to be struck between various rights in the ECHR namely, Article 8, Article 6 and Article 10.
The Judge considered the submissions on behalf of H. Firstly, H argued that Article 8 is engaged by the reporting of information disclosed in financial remedy proceedings obtain under compulsion (it not being his application). Secondly, a significant proportion of the final hearing will focus on the valuation of a business in which H is a shareholder. The dissemination of such information could sour existing relationships and enable competitions to compete for the same work. Thirdly, reporting of that information would affect the commercial interests of third parties. Fourthly, H’s evidence re. his approach to prospective liability arising from his involvement in an overseas company could be exploited and used for collateral purposes and prejudice his position. It could also expose him to criminal sanction. Finally, he argued that most of the evidence filed by the parties was done so with a reasonable expectation that their anonymity would be preserved.
Mr Justice Mostyn considered that there were two unknowns – the first is to what extent the oral evidence and/or submissions will disclose matters that could adversely prejudice H and third parties. That question can only be answered when the evidence is heard. The second is to what extent the press oppose the RRO in the name of open justice and the Article 10 rights of the public. This question can only be answered once journalists attend and hear the evidence.
The Court decided to make an interim RRO to endure until H’s application is considered substantively during final submissions and until the unknowns become known. Having revisited Re S, the Judge considered that the Court can make a temporary order without full evidence and without performing the complete balancing exercise until the parties and the Court are ready to deal with the matter.
The Judge did provide guidance to the advocates as to what needs addressing when the time comes, namely –
To prepare an amended version of the order which:
- i) Expressly states, on page 1, that this is an “interim” RRO;
- ii) Expressly states, also on page 1, that “this order shall take effect forthwith notwithstanding that the seal of the court may not be impressed on it until a later date”; and
iii) Recites that the issue of whether a final or substantive RRO is to be made, and if so its scope shall be addressed by the parties in closing submissions.
Full Judgment can be found at: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/49.html