Can I rely on covert recordings made in family proceedings?

The Family Justice Council held its 12th annual debate in Leeds on 3 December 2018, titled ‘Nothing to hide – what’s wrong with covert recordings?’ The debate was chaired by Lord Justice Baker, who is Lord Justice of Appeal and Deputy Chair of the Family Justice Council.

The panel consisted of:

  • Lucy Reed – Family barrister, Chair of the Transparency Project, legal author and blogger and Deputy District Judge.
  • Hannah Markham QC – Family law silk, children arbitrator and family mediator.
  • Her Honour Judge Mary Lazarus – Circuit Judge, South Eastern Circuit.
  • Debbie Singleton – Director of Legal Services, National Youth Advocacy Service (NYAS) and Treasurer, Association of Lawyers for Children (ALC).

 The panel presented a number of arguments for and against covert recordings.

Accordingly, this blog explores the law relating to covert recordings and asks whether they can ever really be justified.

Law regarding covert recordings

With smartphones and other technology making it easier to make recordings, it is important to consider the law in this area. Whilst there is no specific legislation prohibiting private individuals from making recordings, rule 22.1 of the Family Procedure Rules 2010 gives the Court the power to control evidence.

The important provisions under this rule is that the Court may:

  • Use its power under this rule to exclude evidence that would otherwise be admissible; and
  • Permit a party to adduce evidence, or seek to rely on a document, in respect of which that party has failed to comply with the requirements of this party.

Accordingly, under rule 22.1, the Court could prevent a party from relying on covert recordings they have made.

The approach taken by the Court in relation to covert recordings has been explored in a number of cases:

  • Re C (a child) [2015] EWCA 1096: The father (F) had recorded an argument he had with the mother (M) at handover. M made an application for an ex parte non-molestation order. Having considered the recording, the District Judge made an order preventing F from making further recordings when he met with the M, as he considered that such actions amounted to intimidation. F made an application to appeal this, which was initially granted, but then refused by the Court of Appeal.
  • M v F (covert recording of children) [2016] EWFC 29: This case concerned Children Act proceedings and where the parties’ daughter should live. She was living with her father (F), but the question was whether she should live with her mother (M).   

F had disclosed that he had sewn a recording device into his daughter’s clothing, so that the meetings she had been having with various third parties including social workers could be recorded. M did not oppose the recordings being admitted as evidence.

Peter Jackson J ruled that the recordings could be admitted as evidence on the basis that they were ‘so extensive that it would be unreal to exclude them’. He stated that the manner in which the recordings were made were demonstrative of the fact that F could not meet his daughter’s emotional needs, therefore ordered that the daughter should live with M.

He cited the Cafcass Operating Framework, which provides that officers should bring recordings to the court’s attention if they become aware of it, so they can be dealt with. Peter Jackson J made it clear that this was not to encourage the productions of recordings.

  • Re B (a child) [2017] EWCA Civ 1579: This case concerned Children Act proceedings. The father (F) was arguing that the mother (M) was alienating their daughter. F had recorded conversations he had over the years with third parties including social workers and Cafcass. At first instance, the Judge held that little weight should be attached to the recordings and  he made two orders, the first of which was for a Child Arrangements Order and the second was for his judgment to be published. F appealed both orders, but was only given permission to appeal the latter.

The Court of Appeal considered the appeal. In providing his judgment, Sir Munby (President of the Family Division) emphasised that there was very little authority and no adequate guidance on covert recordings.

He made the following important points:

1. It was important to distinguish between open and covert recordings, the latter of which was problematic.

2. It was important to identify who was making the recording and why.

Sir Munby also invited the Family Justice Council to consider covert recordings.

The position

The above case law demonstrates that parties should take a cautious approach to making covert recordings, on the basis that the manner in which such recordings are made can be used against them. It is clear that the Court will consider a number of factors when deciding how to deal with such recordings including the way in which the recording has been obtained, who the recording has been made of and whether an individual has been selective in the recordings they have made/provided. It is clear, however, that more guidance in this area is required.

Of course, there will be circumstances in which covert recordings can be justified. However, it will always be prudent to seek legal advice before making such recordings and also to consider whether the information you are seeking to obtain through recording can be obtained through other means.

Rayden Solicitors are a specialist Family Law firm and if you require any assistance of any aspect of Family Law, particularly divorce and relationship breakdown please do not hesitate to contact one of our specialists on 01727 734260.

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