In this article, we get Bella Tait’s and Lisa Edmunds‘ take on how recordings of children are to be managed for the purposes of family law litigation.
Bella’s Breakdown
More and more, in this epoch of technology, clients are coming to their legal team with covert recordings which they want to adduce to support their case. This might be a parent recording handover or recording a meeting with a professional, and even sometimes, recording their child saying something which they think supports their case. As ‘007′ as the parent might feel, from an evidential perspective, it is something which must be considered with real care.
First, per FPR rule 22.1 and 22.2, the family court has free reign to determine what can or cannot be adduced in evidence. As, I am sure, is the envy of many prosecutors in criminal cases, the family court does not have its hands tied by a plethora of strict gateways and rules to adduce evidence; we have free and fairly easy access to hearsay evidence and character references, if the court can be convinced it is relevant to the final determination of welfare.
Good Practice Side Note – That being said, especially when considering a local authority’s requirements to bring and prove their case against parents, it is good practice to ask the authority to produce (if they can) the ‘uncle’s brother’s cousin’ who makes allegations against the parents, not just rely on the social worker. We should not always just accept the hearsay evidence (for the ease of the adducer) if the real deal can be produced. Now back to covert recordings…
Per Medway Council v A and Others (Learning Disability: Foster Placement) [2015] EWFC B66 and Re F (Care proceedings: Failures of Expert) [2016] EWHC 2149 (Fam), is it generally accepted that where the recordings hold significant evidential weight, in that they assist a party in proving a fact they may have struggled to prove without the recording, they should be allowed. At the same time, the court may draw inferences in relation to the nature and mode of recording.
The first key factor which must be identified is who the parent is recording. This will drastically impact on how the court considers the recording.
In B (A Child) [2017] EWCA Civ 1579, The former President, Sir James Munby, drew distinct lines between those covertly recording children, professionals and partners. He also identified the need for guidance in the contact of the family law courts.
Recording Children
It is clear that children should never be the subjects of covert recordings (whether or not they are aware of it). Mr Justice Peter Jackson (as was) noted in M v F (Covert Recording of Children) [2016] EWFC 29, para. 7:
Experience suggests that such activities normally say more about the recorder than the recorded.
In M v F, the father had covertly sewn a recording device into his child’s clothing. The court allowed the recordings into evidence, not as relevant to fact but as relevant to the overall welfare question of the father’s parenting capacity and ability to meet the emotional needs of his child. Even though the child did not know about the recording device, the court held that the father was not able to meet the child’s emotional needs both because he took the recordings (which spanned for hours) and, also, tried to rely on them. Further, the court made a substantial costs order against the father in regard to the time spent listening to the evidence produced therein. This is a cautionary tale of where covert recording can go very very wrong!
Recording Adults
Now, it’s a different landscape for covertly recording adults, and again, it will entirely depend on the facts in the case. The court may still take a dim view of a parent recording a professional or partner without their knowledge but if it allows them to prove a fact which would otherwise be difficult or impossible to prove, it should be allowed. The case of Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149, a mother satisfied the court that she was misquoted in the psychological report by adducing the recordings of the meetings she had had with the expert psychologist.
It’s also important to remember that recording someone is an infringement on their privacy which, if over-used, could amount to abuse. Where recordings amount to abuse or intimidation, injunctions can be sought against the recorder to prohibit both overt and covert recordings, per Re C (A Child) [2015] EWCA Civ 1096.
What is clear is that there is a much-needed update from the higher courts in the form of clear and cogent guidance for practitioners and lay clients in relation to covert recordings.
Sneak peek…
As technology evolves, and recording becomes more and more prevalent, there may also be concerns about parties fabricating or amending evidence, such as text messages or photoshopping images. Join me and the absolutely fabulous Isabel Hawkins when we sit down with Cyfor, one of the leading phone forensic experts, on an upcoming episode of Unit Chambers podcast, Family Law and More, due to be released on October 17th, available on all major podcast platforms, subscribe here so you don’t miss out!
Lisa’s Takeaways
To help us navigate the choppy waters of what evidence is admissible and what isn’t the Family Justice Council [FJC] released draft guidance on covert recordings in family law proceedings concerning children. This document is designed to inform ‘good practice’.
The key points to take away from that guidance are:
What is a covert recording?
As defined by the FJC, ‘covert recordings are any recordings made without the express knowledge and permission of the people being recorded whether by video or audio.’
Why covert record?
The draft guidance says covert recordings by parents of each other may be because a parent thinks it is ‘the only way to illustrate their experience of behaviour of which they complain.’ However, in some circumstances it may be viewed as ‘a form of surveillance which in itself can be an example of distorted and obsessive thinking which can constitute a form of harassment or controlling or abusive behaviour.’
The FJC says that ‘repeated covert recordings of one parent by another has been held by the court to be highly relevant to the welfare determination when assessing and determining arrangements for the child.’
With smartphones now part of everyday life it is easy for a parent to press record – almost without thinking. In fact recording is now a way of communication e.g voice notes / TikTok etc. There is no general rules that prevents a parent from recording another covertly but where it involves children there are added complexities and careful consideration needs to be given before a decision is made to attempt to rely on it.
I have seen Judges give express permission to record at handovers – using bodycam / dashboard cameras / ring door bells etc. This demonstrates that the courts are looking to use technology to assist and better what the court already manage, the use of it and the rules around it. The reality is more and more parents will record so we mustn’t be denial about this.
When it comes to recording professionals I have seen one Judge suggest that the recording per se should not be a problem so long as it is with consent of all to be recorded. The Judge said it should be no different to when we telephone a customer service line and the opening remarks are ‘this call may be recorded …’. Clearly the covert recording of a professional will likely ‘backfire’ on a parent in light of the case law mentioned above.
What needs to be considered when deciding whether to admit into evidence covert recordings of child(ren)?
The FJC suggest the following:
- The implication for the welfare of the child and family
- The child’s potential need for legal representation
- The decision as to whether and how the child should be told they are the subject of a recording
- The potential requirement for the child to give evidence
- The costs involved
- Possible civil action
- Risk of injunctive proceedings or criminal exposure
Lisa’s thoughts
Whilst the draft guidance is welcomed it is just that – draft and issued 6 months ago. There is a pressing need for a clear framework as to how recordings of children are to be managed for the purposes of family law litigation. At the moment, if we have a parent approach to say they are thinking about recording the child we would give really unequivocal clear and simple advice: “no don’t do that”.
However, we all can remember those cases where parents are desperate – where they think what the child has said is evidence of wrong doing by the other parent and that if they are the ones to share that information they will never be believed so they are driven to ‘capture it’. Sometimes the parent might be right and sometimes the parent might be wrong.
Whichever way it is looked at the child is ‘front and centre’ of the issue and will need immediate safeguarding. The courts need to set down a clear criteria in which the issues in any case are to be set against. Given the pace of technology (with the advantages and disadvantages that it brings) there is not just a need for guidance but a need for a steering group to be responsible for constantly reviewing and refreshing the guidance in light and in line with the rapid developments around technology.
Law is correct as of 11th August 2023. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.