Covert recordings are now an increasingly common feature of family law proceedings.
Parents have begun to use secret recordings that they have made of their children, the other parent and/or professions involved in their cases for all sorts of reasons. They have sought to use them to highlight perceived inaccuracies in the reporting of interviews by experts, to confirm the “true” wishes and feelings of their children and in an endeavour to expose evidence of parental alienation etc.
To date, the court has on the whole been inclined to admit such evidence in children cases irrespective of the manner in which it has been obtained if it has evidential value but this has often been a high-risk strategy for the covert recorder. This was demonstrated in M v F  EWFC 29, a case heard by Mr Justice Peter Jackson (as he then was), when a father decided to sew listening devices into his child's clothing and ended up losing shared care of them. The father and his partner began their covert recordings in order to try and find out (i) why the child was so reluctant to spend time with her mother, and (ii) what the child was saying to social workers and other professionals. The Father asserted that he never planned to admit the recordings or transcripts into evidence but as matters progressed he wanted to show that what the child was saying to professionals was not being reported or acted on. The father’s partner would sew bugs into the child’s uniform just before she left for school, it would record events all day and the child was completely unaware that she was being recorded. Interestingly, the Court admitted the recordings because the manner in which they were obtained was felt to be directly relevant to an assessment of the father’s parenting. The court reached the conclusion that the father and his partner could not meet the emotional needs of the child. Whilst the covert recordings were not the sole factor it was considered a significant factor.
In contrast in Re F  1 FLR 1304 a parent was able to show that an expert instructed in a case was not honestly reporting the information provided by the parents by covertly recording their interactions. The parent in question was a mother who had suffered long-standing and significant mental health issues including severe depression, psychosis and post-traumatic stress disorder. She was assessed by a consultant who produced a report for the purposes of proceedings. The mother maintained that in his report the consultant misquoted and misrepresented her. She alleged false reporting, inaccurate quoting designed to present her in a negative light, fabrication of conversations and deliberate misrepresentation. But for her covert recordings of their sessions the court may never have unearthed the reality of the situation. The mother successful sought a variety of findings against the consultant including a finding that the overall impression was that he had represented material in such a way as to give it maximum forensic impact. That involved a manipulation of material which was wholly unacceptable and, at the very least, fell far below the standard that any court was entitled to expect of any expert witness. It would appear that when covert recording has produced valuable evidence a parent has been less likely to be criticised and the courts have seemed more inclined to admit the evidence
The increasing prevalence of covert recordings has now prompted the President to confirm (in his judgment in Re B (A child)  EWCA) that he is going to invite the Family Justice Council to consider the whole question of covert recording from a multi-disciplinary viewpoint. In Re B a parent had recorded a social worker, Cafcass officer and a solicitor.
Whilst the President noted that ‘the courts have had to grapple with the legal and procedural issues generated by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial’, he also acknowledged that covert recordings have become much more common and raise a myriad of issues which have not yet been authoritatively dealt with either at first instance or in the Court of Appeal. A detailed analysis of the rules of admissibility was required.
The President attributes the prevalence of covert recording to ‘the ever increasing sophistication and miniaturisation and at the same time ever decreasing cost of modern recording equipment’ and also very sadly the widespread distrust of the competence or even integrity of the family justice system and its professionals.
Whilst the President refrained from issuing guidance until the Family Justice Council has responded he did observe that:
- There was a difference between covert and open recordings (the former being more problematic);
- There were at least 3 categories of persons that were the subject of covert recording (a) children (b) family members and (c) professionals
- Each recording brings with it questions of (a) lawfulness (b) best practice (c) admissibility and (d) other evidential and practical issues (i.e. quality, authenticity etc.); and
- It is important to identify who is making the recording and the purpose of the recording.
The recommendations of the Family Justice Council will now be awaited with great interest as they will no doubt inform future crucial guidance.
Helen Blackburn is a solicitor and partner at The International Family Law Group LLP (iFLG). She specialises in family law concerning children and has a particular expertise in child abduction law and other children cases with an international dimension or involving the cross border movement of children. She has extensive experience of cases involving arrangements for children, custody/residence, contact/access (domestic and international), adoption (domestic and inter country), the reciprocal enforcement of foreign orders, international relocation/ leave to remove applications and jurisdiction dispute
Lauren Bovington is a paralegal at The International Family Law Group LLP.
Helen Blackburn & Lauren Bovington
The International Family Law Group LLP
© 1 November 2017