The type of evidence used in public and private law cases has moved on swiftly and while previously social media evidence was unusual it can now be crucial and telling in family law cases.
For example parents in care cases are definitely under the microscope in terms of their behaviour when gauging whether their children have been exposed to significant harm within the meaning of the Children Act 1989. Emotional harm is becoming more prevalent in such cases with local authorities looking to see if a child has been neglected, or exposed to damaging psychological emotional treatment, or a history of inconsistent or worrying care which gives rise to sufficient concerns to instigate proceedings.
There is usually one ‘trigger’ event which causes the social workers to seek legal advice leading to care proceedings. It may happen that there is a flow of text messages at that time which is of great interest evidentially. Parents go on Facebook and post photographs and messages of their friends and family life. Any image of a child or children, or inappropriate reference to a child, may be alluded to in evidence. The message is not to use the text or internet based sites for any reference to a child or family issues.
It can happen that people’s recall of the timing of events becomes dimmed with the passage of time. But if there is independent corroborative evidence i.e. text messages or Facebook entries demonstrating that at a particular time a person was at a particular place with particular people, this can be fatal to the case.
The applicant local authority can seek to obtain and adduce evidence in support of their case by means of mobile telephone records, print outs of text messages flowing at the material time, and print outs of Facebook entries. You should also be aware that medical records can come into the domain of evidence – local authorities can seek the court’s permission to obtain GP and hospital records.
In conclusion, we should all realise that there are many channels available by which evidence can be adduced to show how parties to a case have behaved – via internet use, phone records, CCTV footage, and medical notes. People should hesitate and reflect before putting a message or image on a social medium or in a text or in an email message.
Valerie Sterling is a barrister at New Park Court Chambers. She specialises in all areas of family law and is regularly instructed for parents in complex public law children’s cases, dealing with allegations of non-accidental injury and sexual abuse. She has experience of Hague Convention and private law children’s cases and also deals with financial remedy issues.