Z (A Child: committal proceeding)  EWFC B5 (24 January 2020) concerned committal proceedings (i.e. proceedings about whether a party should be sent to prison) within a broader private law dispute between two parents over their child, ‘Z’.
Father applied for a child arrangements order in December 2019. Z lives with his mother, and his father’s application centred around how much time he should spend with Z. Mother discovered that the father abused cocaine and, on her case, they separated in September 2018 after a “cocaine-fuelled altercation”. While mother wanted to promote Z’s relationship with the father, she was understandably worried about exposing him to risky individuals as a result of the father’s drug abuse.
Initially, an arrangement was made whereby the father would have supported contact with Z. This differs from supervised contact in that a supervisor isn’t keeping a close eye on contact and making notes, but the contact does take place in a controlled environment such as a contact centre.
The court directed that a section 7 report would be completed, which is a report by a professional such as a CAFCASS officer or a social worker setting out recommendations about where the child should live and how much time they should spend with the other parent. The report recommended that the father provide evidence of drug abstinence through hair-strand testing.
The plot thickens…
The father had said that he had been abstinent from drugs since September 2018, and in June 2019 contact progressed from supported contact to contact in the community. In June 2019 the court directed he should undergo drug testing for cocaine for a period of 3 months.
The father was due to file the testing results on 1st September 2019. That did not happen. Rather peculiarly, father’s solicitor then said that father would be sending him the report shortly. In the normal course of things, it is usual for represented parties to have their legal representatives liaise with testing agencies to arrange drug testing. It is odd for the party themselves to deal with this.
Eventually, the father’s solicitors circulated a report from Cellmark confirming that no substances had been detected in his hair strand sample.
The mother became suspicious for various reasons and her solicitor contacted Cellmark directly. They confirmed that the report circulated by the father was not the report they had prepared. Their report confirmed that the father had tested positive for cocaine in the period from the end of May 2019 to the end of June 2019. It transpired that father had amended the report using the widely available programme, Adobe Acrobat Pro.
Her Honour Judge Hughes stated in the judgment:
I observe, so far as the court is concerned, that this type of deception undermines the system and devalues and seriously undermines the court’s ability to protect children in these circumstances. It is a very serious issue.
The father was slapped with a sentence of 12 months’ imprisonment, suspended for two years. Contact regressed back to supported contact. Had this digital manipulation not been discovered, the court could have sanctioned significant unsupervised contact in the community between Z and the father, potentially placing Z at risk.
The judge made clear that moving forward, as far as this court is concerned, drug testing reports should be sent directly to the court by the testing agency, and not through any other party.
This judgment adds to growing concerns about the use of quite readily available technology to thwart family court processes, jeopardising the safety of children or undermining the courts’ ability to arrive at just outcomes.
The Daily Telegraph reported in January 2020 on the use of “deepfake” audio to provide doctored evidence in a family court dispute. Byron James, a family lawyer at Expatriate Law, has tweeted about how his team proved a recording of their client making threats was fake. Had this not been discovered, the allegation could have been proven against him and impacted his relationship with his children.
Ben Fearnley, barrister at 29 Bedford Row Chambers described one of his cases in this podcast on ‘Dealing with digital fraud in family law’ where the husband provided bank statements showing a transaction on 31st September (a date that does not exist). During cross-examination, husband admitted that he had forged his own bank statements.
Lawyers will know that the family courts rely heavily on certain types of evidence: drug/alcohol testing results, DNA testing results, video and audio recordings, screenshots of texts and WhatsApp messages, and emails to name but a few. All of these are vulnerable to digital manipulation.
Family lawyers and judges need to be alive to this possibility, and wary of dismissing allegations of digital mischief as paranoia or conspiracy theory. The reported judgments continue to show just how far some parties are willing to go to get the outcome they want.
It’s worth noting that the father only appears to have avoided a custodial sentence for what the court regarded as really serious conduct, amounting to perverting the course of justice because once found out he cooperated with the process, explained how he’d done it, and paid the mother’s wasted costs – lastly the court didn’t want to disrupt the emerging relationship between child and father by locking him up. Others may not be so lucky.
Also of note is the fact that the judgment records the hearing was conducted in private, and the parties are anonymised. Although this is normal for cases concerning children, it is not normal in a committal hearing, which should generally be in public and should involve the naming of the adult in question. It is possible to depart from general rule and sit in private in appropriate cases, but the guidance (Practice Direction: Committal for Contempt of Court – Open Court, Lord Chief Justice March 2015) says that :
the fact that the committal hearing is made in … any proceedings relating to a child does not of itself justify the matter being heard in private. Moreover the fact that the hearing may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.
10.Where the court decides to exercise its discretion to derogate from the general rule [the open justice principle], and particularly where it decides to hold a committal hearing in private, it shall, before it continues to do so, sit in public in order to give a reasoned public judgment setting out why it is doing so.
No such judgment has been published as far as we are aware. The guidance also makes absolutely clear that whilst it is possible to injunct the naming of a child, there is an absolute requirement to sit in public and name the defendant (here, the father).
Even if the judge conducted a hearing in private, subsequently announced the decision in public, but redacted the name from the published judgment it is unsatisfactory that the judgment does not acknowledge or explain the decision to sit in private or to remove the father’s name. Arguably the guidance does not permit the anonymisation of the father in the published judgment at all.
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Feature Pic Bars Creative Commons thanks Alberto at Flickr