Evidence Gathering in Family Law

When it comes to Family Law, a strong foundation of evidence is crucial for a successful outcome. Timms Family Law Solicitor, Melissa Knight, discusses evidence gathering in Family Law and whether the Court can use material on an electronic device…..

Can the Court use Material on my Electronic Device?

Quite simply, the answer to the above question is YES. Just like criminal proceedings, evidence from a mobile phone, tablet or computer can be used in family law proceedings. This includes text messages, call logs, internet search history, social media communication and obtaining pictures/ videos from the device. The latest OFCOM statistics suggest that adults in the UK spend over three hours online everyday which is more than most comparable European countries. It therefore comes as no surprise that a phone analysis can often provide a wealth of evidence to ensure that the Court reaches a fair outcome in family court cases.

If just a simple record of calls and texts to a certain number is required, then this data can be obtained directly from the phone company by requesting an itemised breakdown which includes the date and times of communication. This method is often used if parents in an abusive relationship claim that they have separated and there is a concern that the relationship is still ongoing. This type of data can also evidence a person’s location as it can include details of the nearest phone mast when using the device to message or call.

The Family Court can also direct a specialist forensic company to analyse an electronic device. The device is usually sent off for a couple of days whilst the data is downloaded (including any cloud systems) and then returned to the owner. As part of this analysis, a search can be undertaken for key words on somebody’s internet history, communication to another individual , GPS data or photos or videos relevant to the case. A forensic analysis can be useful in cases where a child has been deliberately injured or abused to help the court determine the likely perpetrator. The Court has to balance privacy and human rights when considering applications for a forensic analysis and such applications should only be granted if it is necessary and proportionate to the issues in the case and not used as a fishing expedition.

On many occasions, family court proceedings and criminal investigations run alongside each other. The police may have already seized an individual’s phone to assist with their investigation. It is important to know that the police’s evidence can be used in the family court and vice versa if applications are made.

Interestingly, deleted material can sometimes be recovered from the handset and if any attempts are made to delete data, then the Court may decide to draw an adverse inference which may impact a parties’ credibility.

Artificial Intelligence

There are many types of digital evidence however to date I have not personally had any experience in a case whereby data has been recovered from an Alexa device which we know is artificial intelligence used to respond to voice cues. Voice-controlled devices have however been used in police investigations in the UK. I am interested to see how artificial intelligence will be used in court proceedings as this becomes more advanced and frequently used in society.