Can I make secret recordings and use it as evidence?


27 October 2021

In today’s world where no one is ever far away from their smartphone, the question of technology being used in Family Law proceedings is becoming more and more important. Specifically, the right and wrongs of covert recordings and whether a secret recording can be relied upon in the family justice system. 

In general, as this is an emerging area, there is a stark lack of general guidance, with matters being treated on a case-by-case basis. However, it seems that the question of whether the Court will or should consider any covert recording comes down to the actual relevance of that evidence. What is even clearer, is that the recordings will be judged differently, depending on who is being recorded.

Can I record my meeting with a professional? 

During child proceedings, one parent may feel compelled to record their session with a CAFCASS Officer or social worker, if they feel they are being inaccurately presented. CAFCASS have stated that they have nothing to fear in being recorded as their practices should all be transparent. However, whilst it is lawful to make a covert recording, it is certainly best practice to inform any professional that you intend to record them. Even if the recording or transcript is allowed as evidence in the court proceedings, the court may consider the method of obtaining the recording inappropriate if you did not inform the professional and it could in fact harm your case.

Can I record my children during handovers?

This can be a particularly tense time for co-parents who are navigating a break down in their relationship. Sometimes one parent feels the need to record the handover of the child if they feel the other parent is presenting a risk. Caution should be exercised, however, as in a recent case in the Court of Appeal, it was concluded that recordings of the handover amounted to intimidation and could be used in support of an application for a non-molestation injunction. So care needs to be taken about the treatment of the other parent.

Courts are much wearier of secret recordings of children. One Judge commented ‘it is almost always likely to be wrong’ and this is whether the child is aware of the recording or not. The recordings themselves could even be submitted as evidence of potentially harmful parenting, rather than the focus being on the content of the recording. The court can draw inferences of damage to relationships, inability to trust and a lack of insight into the child’s needs.

Top tip  

Keeping a diary or log of any issues during a handover is advised. It is a good way to keep up-to-date notes and will be considered as reliable evidence in court, especially if the entries are made at the time of the incident as the recollection of events is likely to be accurate and detailed.

Things to remember

The most important thing to remember is that in the majority of cases, covert recordings can often reveal more about the person doing the recording rather than the evidence they sought to bring to light.

If you are thinking of making a covert recording, these are the main points to consider:

  1. how the recording is taken and the context of the recording
  2. who was aware of the recording when it was taken
  3. why the recording was taken
  4. does the recording actually show what it is said to
  5. has the recording been edited in any way
  6. what impact is the recording likely to have on the credibility of those involved.

If you have discussed it with your solicitor and you are sure your recording is absolutely essential to your case, it is best practice to produce a statement addressing these above points. This can then be filed at court at the same time as the recording, so the Judge has all the information necessary before any decisions are made.

If you would like to discuss any of the matters above, please contact Georgia Butterworth or another member of Birketts' Family Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.

Author

Georgia Butterworth

Solicitor

+44 (0)1603 756551

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