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)  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.