Can we still rely on WhatsApp in Family Law proceedings?

18 July 2023

WhatsApp messages as evidence: case study by Oscar Smith

Hard evidence of allegations between parents in children proceedings is often difficult to get. I often see cases get into the “he said/she said/they said” situation between separating couples. I do not envy Judges having to pick between the parties during evidence.

Every so often, WhatsApp or text messages can be critical evidence to help persuade a Judge to believe one side more than the other. In one recent case, I acted for a mother who had removed a child from Dubai to England. She did so without the father’s permission. The mother explained her actions were because of an alleged incident of domestic violence where the father had punched her during an argument.

Based on international family laws, the child would likely be deemed as habitually resident in Dubai. This could lead to potential jurisdiction issues. To be on the front foot, I immediately issued divorce proceedings in England on behalf of the mother. Then I could apply in the English High Court (deriving jurisdiction from s2(1)(b) Family Law Act 1986) for:

  • a without notice prohibited steps order to prevent the father removing the child from the mother’s care, and
  • permission to permanently relocate the child to England.

The father cross applied for an immediate summary return of the child to Dubai, and this issue was heard over two days.

The judgment (unfortunately unreported) refused the father’s summary return application. It allowed the child to remain with the mother in England pending a full determination of where the child should permanently live.

A critical factor that persuaded the Judge was several WhatsApp and text messages sent by the father to the paternal grandfather. In the messages, they said,

“I was about to break her teeth”,

“I should have knocked her unconscious” and

that he would “sue for sole custody in Dubai and no-one would ever see [the child] again”.

The father did not deny sending them, but said they were sent in the heat of the moment and that he did not mean them. Time stamps showed that he had sent them 24 hours after the argument.

The Judge did not accept the father’s account, and the messages were damning evidence for him. Expert evidence that the father would likely obtain sole custody of the child in Dubai (as he had threatened) and potential criminal sanctions in Dubai for the abduction by the mother were also presented to the Judge.

The messages together with the expert evidence meant the Judge went against the decision in the leading authority of Re A and B (Children) (Summary Return: Non-Convention State) [2022] EWCA Civ 1664, despite the facts in the cases being similar.

As I say to my clients ad nauseam, assume everything you send to your ex-partner will ultimately be read by a Judge.

Message editing functionality in WhatsApp

After recently speaking with Oscar about the above case, I thought it was crucial that the most recent updates on WhatsApp were shared with the Family Law community. These communication records can and do play a big role in family law proceedings. It is therefore vital that we are aware of what we can and cannot trust when it comes to WhatsApp.

The most important update on WhatsApp is their newest functionality as of May 2023: WhatsApp will now allow users to edit sent messages within 15 minutes of sending the message.

How does this impact separating families, where communication and communication records are so vital?

There is nothing to stop someone sending a message on WhatsApp and then changing the contents of that messages 5, 10 or 15 minutes later. This leaves a huge window for potential discretion, manipulation or falsification.

In the context of family proceedings, where there are potentially allegations of abuse, WhatsApp could be used to facilitate harmful communication. Parents can send an upsetting message on WhatsApp, wait until the message has been read by the other person (with the blue tick confirmation) and then change the entire content of that message—thus hiding their original, potentially insulting or offensive message.

We must all be aware of the editability and limitations of these communication methods. As Oscar states, the messages were damning evidence for him in relation to his case. How damaging could this ‘evidence’ have been if it was not accurate or presented as true when they were actually falsified. Further, we need to ensure we are recommending to parents the safest and most secure communication platform available to them.

Overcoming communication barriers

One of the solutions people first think of is screenshotting. Surely, we can screenshot quicker than the other person can edit the message? Maybe so, but sadly, we cannot trust a screenshot either. There are many free websites that allow you to create fake WhatsApp screenshots, for example FakeWhats. These tools will allow you to create an inaccurate record of communication quickly, easily—and for free!

OurFamilyWizard can keep parents’ communication records safe online by:

  • facilitating safe communication
  • create accurate records
  • and give both you and families assurance that their child-related communications are secure.

Visit to learn more about the platform and about the differences between messaging on OurFamilyWizard versus standard email or texting apps, like WhatsApp, in this comparison article.

For more information or to book a free training session for family law professionals, you can email me anytime at

This article was written by Oscar Smith, Senior Associate at Expatriate Law, and James Evans, Head of UK Professional Education at OurFamilyWizard.

Oscar Smith

Oscar is a Senior Associate at Expatriate Law and advises clients on a wide range of family law including the financial and children issues which arise upon the breakdown of a relationship in married or unmarried couples. He is a Resolution-accredited specialist in complex high-net worth financial remedies and in cohabitation cases.

Known for his calming manner and constructive approach, Oscar is experienced advising clients that have an international element, with a particular interest in cases within the EU.

Read his full bio here.

Email: | Tel: +44 (0)207 846 5463

James Evans

James Evans is the Head of UK Professional Education at OurFamilyWizard.

Having previously worked as a teacher, James joined the Family Law community over four years ago to introduce Family Law Practitioners around the country to OurFamilyWizard. James works with Courts, Chambers, Firms, CAFCASS, Mediators, Organisations and Charities to help parents with their communication.

James is a member of the East Sussex Resolution committee, the Family Dispute Solutions Group, the Family Law Language Project, The Parents Promise Alliance, The Family Mediation Week committee and is the chair of Support Through Court’s Family Ambassadors Board. James was shortlisted for the Innovation Award in Mediation in 2021 and again in 2022, as well as being shortlisted for Resolution’s Innovation Champion Award.

OurFamilyWizard was also shortlisted for Family Law Innovation of the Year at the National Family Law Awards in 2022.

Email: | Tel: +44 (0)7888861032

If you’d like to read more on the topic of communication during and after divorce, you may also be interested in:

Can we still rely on WhatsAppin family law proceedings? Hand holding up a mobile phone with WhatsApp logo on the screen. Expatriate Law logo and OurFamilyWizard logo.

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