Technology and Social Media: The Cause or the Answer to Family Law Disputes?
I recently attended a seminar hosted by the International Academy of Family Lawyers which brought together a number of lawyers from throughout Europe to reflect on and discuss current family law issues. One of the topics of discussion was digital information and social media. Given the increased global use of technology, it was very inciteful to hear how different legal systems have been dealing with the changes this has brought about in the family law field.
I have set out below a few of the anecdotes and observations that were shared during that seminar in the hope that it helps people to avoid the potential pitfalls, but also to highlight the positive aspect of recent developments in technology.
What was clear from our discussions is the variety in ways of which technology and social media can perhaps give rise to evidence or information which may be relevant to a family law case. For example:
- Discovering an affair: household items such as bathroom scales may record and store information of anyone who uses them – and in one case mentioned the reading from the bathroom scales had been sent through to the wife’s Fitbit when her husband’s mistress weighed herself
- Cohabitation: there have been a whole range of cases where practitioners have gathered information from social media to evidence a new relationship after separation. Such a relationship may well be argued to have an impact on a party’s needs for maintenance. It was commented that in France, the courts would probably take into account evidence based on public information on social media, and I know from personal experience I have been involved in cases where pictures of holidays, luxury cars and expensive jewellery have been included as evidence of a person’s lifestyle.
- Jurisdiction: in a case involving the estate of the famous French singer Johnny Halliday, information from social media was presented to the judge to establish where he had been living which helped to determine whether a case should be dealt with in France or not. When the English court looks at the question of domicile, it is being asked to consider the place a person calls “home”. Evidence of a spouse in a particular international sports kit, or waving a particular flag can help to give a sense of someone’s patriotism which may be relevant.
- Revealing weaknesses in your own case: as lawyers, we are extremely experienced in ensuring that factual information is presented in a way which best supports a client’s case. We always advise clients to provide us with their full financial disclosure and explain how this information may affect the overall outcome of their case. Where things can become tricky is if a client’s emotions take over and a public “rant” is shared on social media revealing information which has perhaps not been disclosed or indeed emphasising a negative aspect of the case. Even if there is no evidential information included in an emotive post, there is the risk that such posts can become a distraction from resolving the issues at hand as inevitably it feels to the other party as an attack on their privacy.
As well as the use (or abuse!) of social media between adults being questioned, there is also the potential for children’s use of social media to give rise to various parenting questions which have to be addressed.
There was recently a case in Germany where the court had to look at whether it was appropriate for a child to have free reign on the internet. Initially a judge made a decision that whilst the child could live with the mother, the mother had to reassure the court that there would be appropriate rules and boundaries in place and that the child would not have access to a smart phone until the child was 12 years old. The decision of that first judge was appealed and the higher court in Germany made it clear that whilst it is important to be aware of the potential risks associated with free access to the internet, the court should only intervene and set rules if there are substantial indications of a concrete danger to the child.
A common question amongst a number of practitioners centred on the publication of photographs of a child. In Germany, the courts encourage parents to agree whether photographs should be posted online and in the absence of an agreement, the decision should be made by the person who opposes the publication. I have known cases in England where judges have limited the public posting of photos. Often a workaround can be found whereby appropriate privacy settings are used to ensure that although social media is used to share information, it is only shared with, for example, a trusted group of family members and friends. What can be a particularly emotive issue, and something I would always urge people to consider, is the posting of photographs on social media by a new partner of their involvement in the children’s lives. This is something which should be considered very carefully in terms of the way in which it would be received and the potential emotional fall out from it.
Another parenting decision that was being spoken about as being considered by the courts in Germany was in terms of how much a parent can/should control or supervise their child’s use of social media and messaging. In Germany, it has been decided that parents can have a level of control over the information that children share publicly, but they cannot control their children’s private conversation unless there is clear evidence that it poses a risk of harm to them. From my experience, the question of parental intervention in these circumstances is a difficult one for parents who remain in a relationship as they may have different views or have had different experiences which affect their outlook. A separation can potentially mean that these views become polarised. A parent’s attitude and approach to social media can have an influence on much wider issues i.e. where a child should live. Whilst, particularly for older children, the court will want to understand the child’s wishes and feelings, caution does have to be exercised when the reason a child expresses a preference to live with one parent rather than the other is a comparative lack of boundaries/greater freedom when it comes to social media and telephone/internet use.
Perhaps the most important warning we can give is against the use of technology to record. We have highlighted recently the risks and consequences of recording remote court hearings. Considerable caution should also be exercised before recording a spouse or a child – doing so can create a number of issues and there are no guarantees that the information recorded would actually be considered as part of the case. There is a real chance that making a recording could damage your case more than help it and it is important to seek legal advice.
It was clear from the discussions that technology and social media have a real role to play particularly where there are international aspects to a case. This can be as simple as the various ways in which technology can help to maintain relationships internationally between parents and their children, but also in terms of the way in which clients can access legal advice from around the world. Being able to set up a video call between the client, myself and a lawyer in a different jurisdiction has really helped to provide the client with a holistic approach to their case. Technology is also helping us to work collaboratively with clients, ensuring that we have a secure online portal for clients to upload information.
One quite technical point of legal proceedings can be the question of service. It is perhaps a principle that is quite easy to understand: justice require that someone should be made aware if there is going to be a court case against them. However, the rules as to how that is properly achieved and evidenced are potentially quite complicated. The rules on service vary from country to country and I can recall that as a junior lawyer I was particularly scared to learn that some methods of service in some countries are potentially a criminal offence even though they are quite normal in England.
What became clear from the seminar is that there is a growing consideration of the ways in which documents can potentially be served via social media. There were cases mentioned from the US where service had taken place via Facebook. In contrast, courts in France and Belgium were reported to be a little more cautious about this approach. Where a client has very limited information about their spouse then it is important to have a conversation at an early stage as to what steps may need to be taken to effect service. The court’s permission would be required for more unusual methods of service and given there may be a pressure of time in ensuring the other party receives documents, it is important to have these conversations at an early stage.
The biggest overarching change that family lawyers are perhaps seeing is the way in which technology and social media can build awareness of important issues. This is perhaps most evident in terms of the awareness around domestic abuse – both in terms of what constitutes domestic abuse and also how those who experience it can seek help. No two situations are the same and it is vital that there are a variety of means open to people to seek advice and support. Whether it is specific apps that are being developed under discreet names (see our blog here) or simply having a “quick exit” button on a website to be able to hide the page quickly, technology certainly has a role to play in ensuring safe access to advice.
At Maguire Family Law, I know that we all try to use technology and social media in a way which makes us as accessible and user friendly to our clients and potential clients. Whether that is just being able to send a quick WhatsApp message to reschedule an appointment or using screen sharing in a video call to work on the drafting of a document, we try to think as creatively as possible about how technology can help.
We really do want to ensure that technology and social media are a force for good in the family law arena and that can often start with a number of key warnings to clients at the outset of their case. This will likely start with the basics of changing passwords and disassociating yourself from shared accounts, but is likely to include bespoke advice based on a clients individual circumstances.
It may be that you are someone who feels overwhelmed by technology – and if your preferred approach is a pen and paper form discussed at a face to face meeting then we will do everything we can to accommodate this safely. Where technology is compulsory i.e. because a court hearing is taking place remotely, we will do whatever we can to make this as straight forward and accessible for you.