However, a difficult question is increasingly arising in Scottish family cases: what if the way someone gathers evidence could itself be viewed as abusive behaviour?
This issue is particularly relevant in cases involving coercive control. Our understanding of domestic abuse has changed significantly in recent years. Abuse is no longer seen as being limited to physical violence. We now recognise that controlling, monitoring, intimidating, or isolating a partner can also be abusive behaviour.
Against that background, family lawyers are seeing more cases where one party has collected evidence through forms of surveillance or monitoring. This can include recording conversations without consent, tracking social media activity, taking photographs, monitoring communications, or keeping detailed records of another person's daily life.
Often, the person gathering the evidence believes they are doing the right thing. They may feel they are protecting a child, demonstrating concerns about the other parent's behaviour, or simply trying to prove their case.
Sometimes that evidence may genuinely assist the court.
The difficulty is that the behaviour used to obtain the evidence can look very similar to the behaviour that courts are increasingly being asked to recognise as controlling or coercive.
This creates a real dilemma.
On the one hand, courts need relevant evidence to make informed decisions, particularly when a child's welfare is at stake. On the other hand, courts must be careful not to overlook conduct that may itself form part of a pattern of control or intimidation.
At present, there is no clear-cut answer as to where that line should be drawn.
Scottish courts are becoming increasingly aware of the effects of coercive control and other forms of non-physical abuse. However, the approach to evidence gathered through surveillance or monitoring remains uncertain. The evidence itself may be relevant and admissible, yet the court may also consider what the gathering of that evidence says about the relationship between the parties.
This creates risks for litigants.
A person may believe they are strengthening their case by collecting recordings, screenshots, messages, photographs, or observations over a prolonged period. Yet that same material could raise questions about their own conduct. What one person sees as careful preparation for litigation may be viewed by another as monitoring, intimidation, or an attempt to maintain control after separation.
For family law practitioners, this requires careful advice and judgement. Evidence must be gathered lawfully and proportionately. Equally, clients need to understand that the process of collecting evidence may itself become a matter of scrutiny before the court.
Perhaps the bigger question is whether courts should place greater focus on the distinction between evidence that exposes abusive behaviour and evidence that is obtained through behaviour that may itself be abusive.
As awareness of coercive control continues to grow, that distinction is likely to become increasingly important.
Ultimately, family courts are no longer looking only at what evidence shows. They are also looking at how that evidence came to exist in the first place.
In some cases, the most significant question may not be what the evidence proves, but what the act of gathering it reveals about the relationship itself.
What are your thoughts?
Should family courts take a closer look at the methods used to obtain evidence, particularly where those methods resemble the very behaviours alleged to be abusive?
