Those who have grown up with social media might remember their parents or teachers reiterating that one golden rule: think before you post. Never is this rule more important than in the context of child welfare disputes in the Scottish family courts.
As family lawyers, we are increasingly seeing social media posts and private messages being relied upon as evidence. In fact, many co-parenting communication apps are being designed with that function in mind. Whilst these co-parenting apps often include features to help users neutralise language, reduce confrontation and prevent abusive communication, such safeguards are not generally found on media platforms. This can become problematic if parents are posting or communicating via social media, particularly where one parent is possibly too quick to hit “send”.
The perils of using social media in child law disputes
Social media posts publicly criticising the behaviour or recent actions of the other parent tend not to be well received by decision makers. The same can be said for posts or even private messages which discuss the ongoing court proceedings, particularly where negative comments are being made about the other party or other individuals who may be in the process, such as the child welfare reporter, or a healthcare professional involved in the life of the child. Court hearings involving children are generally held in private to protect the children involved, so the court takes a very dim view of parents who then seek to publicise elements of the court process via social media. Indeed, sheriffs and judges often reiterate to parties during proceedings that information and documents relating to their case must not be shared online.
Such online behaviour can give rise to many concerns, including the level of conflict a child might be exposed to at home. It can also lead decision makers to question that parent’s ability to actively promote their child’s relationship with the other parent. In the context of Child Welfare Hearings, it is not unusual for judges or sheriffs to directly ask parents whether they thought about the impact on their child’s emotional wellbeing if that child were to later come across a post or message.
The growing trend of “sharenting” (where parents share information, photographs and details about their child online) may also create problems in the context of a family law dispute. Whilst one parent may be keen to demonstrate the positive relationship and experiences they share with their child, it can raise questions about whether that parent is appropriately balancing their child’s best interests with their own wish to share content online. This can give rise to privacy concerns about that child’s digital footprint and sometimes even safeguarding concerns if that parent is sharing excessive details about their child’s location, day-to-day routine and personal information. It may also lead to conflict between parents, particularly where they disagree about what is appropriate social media use and the extent to which their child is visible online.
When might it be appropriate to rely upon social media activity as evidence?
In some cases, it may be appropriate to use the other parent’s social media activity to challenge their credibility. For example, if a parent has been stating throughout the course of proceedings that they are supporting and encouraging a reluctant child to attend for contact, but social media posts suggest differently, this can be used as one way to challenge that parent’s credibility. It is important to remember that, in these instances, social media often does not tell the whole story. However, challenges to credibility may still influence a decision maker when considering how that parent’s conduct should be viewed in the context of their child’s welfare.
Social media posts can also be used as evidence to find a parent in contempt of court where they have breached the terms of an existing court order. For example, if there is an order in place preventing the parent from attending at a certain location, and a photograph is posted showing them to be at that location, this photograph can be lodged with the court and there can be serious consequences for breaching court orders.
It goes without saying that posts relating to excessive alcohol use or drug use can be lodged in court in support of concerns regarding a parent’s ability to adequately care for their child. Images or videos of concerning behaviour taking place in the presence of the child can be a cause of serious concern to decision makers and can often lead to a parent’s judgement being called into question.
In today’s digital age, it is not uncommon for some parents to quickly take to social media without much thought of where that post or message could end up. My advice to clients who are navigating a child welfare dispute is clear: remember the golden rule - think before you post and assume that anything you post can be seen by a judge, because you never know, it just might be.
If you require assistance navigating a child welfare dispute, please get in touch with our family law team.
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Solicitor
