Here, Senior Associate Kirsten Tomlinson explores the options for separated parents who differ in their approach to sharing their child online.
Navigating social media can become a point of contention for parents that separate and the family no longer lives as a single family unit.
When parents live together it is much easier for an agreement to be reached on what content can be shared online. However, after a separation, parenting styles can evolve to become more individualised than what they once were in the single family unit. This can mean that a previously agreed unanimous decision could be challenged by the new separate parenting roles that emerge post-separation.
Parental responsibility does not explicitly cover social media
If both parents share parental responsibility for their child, they hold a collective set of rights, duties and obligations, not only towards their child but also towards each other as separated parents. Having shared responsibility means that both parents have an equal say when it comes to important decisions regarding their child’s life such as where they are educated, whether they are brought up in a particular religion and whether they should receive certain medical treatment.
However, the specific issue of a parent posting photos or content on social media about their child is not explicitly covered by parental responsibility. This means there is nothing to prevent either parent from posting about their child on social media.
Applying for a prohibited steps order
A parent who has parental responsibility, however, does have the right to make an application to court if there is a disagreement that involves the lives of their child. In this example, if a parent does not want information being posted on social media about their child and they want to stop the other parent from doing so, they can make an application to court. This is known as a prohibited steps order.
If you are a parent who has received a prohibited steps order from court, that prohibits posting on social media about your child and you breach this order by posting and ignoring the order, then the order can be enforced, and you could be held in contempt of court.
However, there is also the opportunity for you to challenge the court order if an application is made for a prohibited steps order against you and ultimately the court will make the final decision on whether the order should continue/be granted or whether the application should be dismissed.
Overall, it is likely the court will be reluctant to interfere in one parent’s social media posts unless it can be evidenced that it is affecting the child’s wellbeing in a detrimental way and/or it is causing them/they are at risk of harm as a result of the posts. This high threshold means the likelihood of success is low without such evidence.
Court proceedings should be a last resort
Issuing court proceedings should always be a last resort to resolving conflict between parents. This is because court proceedings can be a lengthy, stressful and expensive process.
To alleviate the issue of social media and to avoid court proceedings, parents should try to communicate and agree on a set of rules to adhere to. It is important to clarify the type of photos, videos and information that can be posted online and to specify whom can have access to those social media platforms to view the material. The more detailed the agreed arrangement the less likely it is either parent will mistakenly post contested material.
However, we understand that it can be extremely challenging for separated parents to establish communication channels to decide on issues such as social media at the start of their separation. In such cases, if one parent posts material that the other parent is unhappy with, the material can be flagged on the social media platform. Each platform will have regulations, most sites will therefore allow a user to flag posts which infringe those rules. Once flagged the platform will review and decide whether or not to remove the content. This method does have limitations such as the delay between content being flagged and subsequently reviewed. There is also no guarantee that such content will then be removed.
A child’s right to privacy
Finally, while it may be difficult for a parent to prevent their ex-partner from posting content of their children, in specific circumstances it may be possible to rely on privacy laws. Article 8 of the European Convention on Human Rights establishes an individual's right to respect for their private and family life. The Court has clarified, regarding the rights of minors to private life and image, that an appropriate balancing exercise requires taking into account the vulnerabilities of minors, as the disclosure of information concerning their identity may impact their dignity and well-being more detrimentally than in the case of adult persons.
Capturing and sharing photographs without consent may infringe upon the child's Article 8 right to privacy. The key test for determining whether information is private is whether the person involved had a reasonable expectation of privacy, taking into account factors such as the nature of the activity, the location, the absence of consent, and its impact on the individual.
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