Re M: K v L & Anor

In private law children proceedings, intimate photographs and videos should be admitted only where their relevance and probative value justify their use. The court must balance the right to a fair hearing against the likely effect on a vulnerable witness and the fair conduct of the proceedings. Relevant material may nevertheless be excluded where it is excessive, repetitive or disproportionate. The court should consider less intrusive alternatives, limit the quantity of material and restrict who may view it. Advance permission should ordinarily be sought before sexually explicit or intimate material is filed. Previous sexual history is generally irrelevant to allegations concerning the relationship in issue, although the court declined to establish absolute rules for every case.

The proceedings concerned a three-year-old child and competing allegations of domestic and sexual abuse made by her parents. The mother had successfully appealed the outcome of an earlier fact-finding hearing on grounds including the absence of participation directions and inadequate consideration of her vulnerability. The proceedings were remitted for a rehearing before Mrs Justice Knowles.

This judgment determined case-management issues concerning intimate images, participation directions, sexual-history questioning, the use of the earlier judgment and transcripts, and further evidence. The central issues were how intimate material should be assessed and managed, and what directions were required to secure a fair rehearing.

1. Intimate images. The deployment of intimate images had been unbounded and disproportionate. Under the court’s evidence-control powers, relevance and probative value were the starting points, but material could be excluded where it was excessive, repetitive or added no forensic value. The relevance test should be applied generously at the case-management stage, but it did not permit indiscriminate use of evidence.
2. The court had to balance the father’s right to a fair hearing against the mother’s right, as a vulnerable witness, to participate fairly and give her best evidence. The court should consider the likely distress and humiliation caused by intimate material, the parties’ vulnerability, proportionality, and whether alternatives such as admissions, transcripts, descriptions, audio-only evidence, metadata or focused questioning could be used.
3. The judge gave preliminary rulings on the father’s schedule. Some images and videos were excluded as irrelevant; some were retained but need not be viewed; and recordings alleged to depict rape, together with material concerning the child, were to be viewed. The mother’s intimate material remained in the bundle because her position was insufficiently particularised, but it was not to be viewed unless essential.
4. The judge endorsed general guidance that sexually explicit or intimate material should ordinarily be filed only following a written application. Any admitted material should be limited to the minimum necessary, viewed by as few people as necessary, and kept securely.
5. The mother was to have an intermediary, a consistent interpreter, separation from the father, regular breaks, advance notice of topics, and protection from unnecessary exposure to traumatic material. A time guillotine and advance provision of written cross-examination questions were refused as disproportionate and potentially unfair.
6. Questioning about the mother’s previous sexual history or behaviour was excluded in this case as irrelevant, although the judge declined to establish bright-line guidance for all cases. The earlier fact-finding judgment and all earlier hearing transcripts were excluded because the first hearing had been procedurally unfair and the resulting evidence was materially contaminated.

1. High Court (Family Division) The earlier fact-finding outcome was successfully appealed and the proceedings were remitted for case management and rehearing. The appeal judgment was [2021] EWHC 3225 (Fam).
2. High Court (Family Division) The present judgment determined the preparatory case-management issues and gave directions for the rehearing.