Secret recordings - can they be used in the Family Court?

It is an increasingly common scenario for family lawyers. A client explains that they have a number of secret recordings of their ex-partner, their…

Family Solicitor Matthew Taylor shines a light on the murky issue of covert recordings being used in Family Court proceedings.

It is an increasingly common scenario for family lawyers. A client explains that they have a number of secret recordings of their ex-partner, their children or even a social worker. How does the court deal with this issue?

Covert recordings can be admissible as evidence, but the Judge’s permission is required, and it is often argued that they should be rarely allowed. In Children Act proceedings, they may be admitted as evidence if they help a consideration of a child’s welfare.

The Transparency Project’s ‘Parents recording social worker- a guidance note for parents and professionals (December 2015)’ summarises the law as follows:-

“CAN A RECORDING MADE BY A PARENT BE RELIED ON IN COURT?

Potentially, yes –but the court would have to give permission. A court is unlikely to give permission unless it is clear that the recording is both relevant and reliable.

A court is more likely to give permission if a recording is of good audio / visual quality and is demonstrably a record of the entire meeting or interview, rather than an edited selection (a parent who wishes to rely on a recording of a meeting or conversation will need to provide a recording of what everyone present has said, not just the words of one person).

If a meeting or interview has been made covertly it may be difficult to demonstrate that the recording is complete and that something said or done is not being taken out of context.

The court is likely to require a transcript to be prepared, but the original digital or analogue recording should be made available to all participants to hear / view.”

Recordings can be viewed in a negative light by the court.

In M v F (covert recording of children) [2016] EWFC 29, a father made recordings by sewing devices into the lining of his child’s clothing to try and find out what was being said in meetings between the child and her social worker.

The judge was damning of this approach, saying “it is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence.”

The judge found that the child should live with her mother and the father was ordered to meet the mother’s costs.

In the recent case of Re B (A Child) [2017] EWCA Civ 1579, Sir James Munby, President of the Family Division, acknowledged that covert recording was a “pressing issue” and invited submissions on the subject so that further guidance could be provided. This is to be welcomed and will hopefully clarify where recordings can be useful and valuable sources of evidence, and where they show the recorder in a dim light.

Matthew Taylor is a solicitor in the family law team in Weightmans’ Liverpool office.

Matthew.taylor@weightmans.com

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