Social media channels are changing human behaviour in both trivial and important ways, and these are increasingly affecting cases heard in family courts - an issue that advisors to wealthy clients must consider.
Whatever one thinks about it, it is hard to get away from social media and there are few more significant examples than Facebook in terms of how this platform is reshaping social lives, habits and mores (not always for the better). Already, ideas about reputation protection, privacy and branding are being shaken up.
This article, by Hazel Wright, partner at Hunters Solicitors, looks at the specific issue of family courts and how they are affected by social media. This publication is pleased to share these insights with readers; it stresses that its editors don’t necessarily agree with all the view expressed and welcome readers’ responses. They can contact the editor at email@example.com
Facebook has 1.44 billion monthly active users. It is therefore no surprise that for many people, it has come to the centre of their communication with others.
This can be a very good thing. A recent development in the US (Baidoo-v-Blood-Dzraku-2015-NY March 27 2015, as reported in the Washington Post in April 2015) is the order by a New York judge that a Brooklyn woman could serve her husband by Facebook with a summons for divorce.
She told the judge that she had been trying to divorce for several years, but he had no fixed home or job. The judge accepted her proof that the account she wanted to use belonged to her husband and that he logged on regularly and was therefore likely to see the divorce summons.
In English law, we have been able to serve divorces for many years in circumstances where the respondent was difficult to trace. Originally a solicitor would apply to court for an order to serve by advertisement in a local and national newspaper (as often happens for bankruptcy for example), but more recently judges agreed to make orders for service by email or other means that will come to the notice of the respondent.
The first reported case in England of being allowed to serve court papers on social media was a commercial order in 2012. We call such service substituted service. In fact we don’t always need to show that the respondent has filled in the form sent by the court to acknowledge service, as it is possible to proceed to decree of divorce based on some other evidence of service. This can be a remark posted on Facebook about the contents of the petition, for example.
But Facebook can also land users in trouble. This happens in various ways. Of course, those who use social media include those who make or renew friendships and those relationships develop. Those using the internet do not perhaps exercise caution in what they say or do as they might in other contexts. The July 2014 issue of the journal Computers in Human Behavior found a positive correlation between increased use of Facebook and rising divorce rates. This does not prove causation, but there is clearly a link.
One of the most obvious difficulties is when users post photographs or other evidence which shows that they are doing something they wish to deny. It might be going on holiday when telling their employer they are lying sick in hospital. It might be a picture of a loving couple, possibly in a compromising situation, both of whom are married to others (to prove adultery, in order to divorce, the petitioner has to demonstrate “opportunity and inclination” so such a revealing picture with an unwise caption goes a long way). It might be a picture of a new prized possession such as a new luxury car or collector’s painting, or jewellery.
The American Academy of Matrimonial Lawyers said in 2014 that more than 80 per cent of their members had seen a significant increase in cases involving social media. Nearer to home, a survey by Divorce Online in England in 2012 claimed that Facebook was mentioned in one third of divorces.
Another real problem which has been troubling the courts this year, in regards to Facebook, is the posting of images and claims to promote a cause or to denigrate someone else involved in the family courts. The prominent case of Ethan Williams (Williams v Minnock and Ethan Williams by his guardian, Bristol Crown Court VS13P00027) has been the subject of a great deal of media attention.
Ethan’s mother Rebecca Minnock ran away with him in May 2015, defying an English court order to hand him to his father’s day-to-day care. Ms Minnock and her family and friends used the media to raise the profile of her situation, and to support her claim that the court had made the wrong decision. The judge was very quick to condemn this use, both by pointing out that it is very unfair to the father to attempt to use the press to deny him justice, and also that it is a very irresponsible way to behave towards the child. The posting of petitions and photographs on Facebook are likely to be found by the child in due course, which can only cause him distress.
In another case, this time with an international context, a father posted messages and pictures on Instagram in an effort to put pressure on the mother to return their child from Angola, her home country where she was keeping him. In RC (mother) v AB (father)  EWHC 1693 (Fam), he threatened to publicise a video recording in such a way “as to encourage the mother to believe that he was on the point of releasing an intimate video of them having sexual intercourse” in April 2015.
On 13 May he posted another photograph of a group including himself and the mother, on which he had superimposed a devil’s “emoji icon” mask on the mother’s face. The judge decided that these actions were harassing and upsetting. He said that the father bore greater responsibility for exposing the child to parental conflict. On the legal test of the child’s welfare, the order was for the child to live in Angola with his mother, and for undertakings that neither parent should intimidate, harass or pester each other or encourage anyone else to do so. This outcome was not clearly foreseeable, and the impact of the bullying of the mother by the father clearly came into the judge’s thinking.
Finally, we all need to consider our digital legacies. When you die, what happens to the information you have uploaded? Facebook has recently announced that this is up to the user. Either you can appoint a “Facebook heir” who will look after the account and either curate it or delete it. If there is no separate appointment via Facebook, the appointment of a digital heir in a normal will is going to be honoured by Facebook.
But it remains the case that Facebook is in our lives, as are other social media, which means that the family courts have to deal with all the implications involved.