Covert recordings in family proceedings
13 April 2022
In recent years, there has been a stark increase in the use of covert recordings in family cases. Sir James Munby, the former president of the family division of the High Court of England and Wales, stated that the two main reasons for this are developments in modern recording equipment and a lack of trust in the integrity of the family justice system. Typical examples of covert recordings include the use of a mobile phone, but there have been examples of far more sophisticated recording systems being used. For example, there has been cases were parents have sewn recording devices onto their child’s clothes.
The withdrawal of public funding from most private family proceedings means that many litigants do not have access to legal advice and represent themselves. In an attempt to gather ‘evidence’ to support their case litigants may find the use of technology easy and attractive whilst overlooking the possible long lasting and far reaching consequences of choosing to do this.
Is evidence obtained covertly admissible in the family courts?
The court has wide discretionary powers, which can be used to control what evidence is before the court. It will be within the discretion of the judge to decide whether the covert recordings are admissible.
Consideration of this issue, together with questions about what weight should be attached to such recordings, difficulties with establishing their authenticity and problems with their quality, and the necessity to hold a fact-finding hearing will add to the complexity, stress and expense of proceedings.
How does the court treat such evidence?
There have been some cases where covert recordings have been of persuasive value for the court. In particular, the use of covert recordings in public law care proceedings have uncovered seismic failings of local authorities, including racial and sexual abuse.
Generally, particularly in private children proceedings, these recordings are viewed very dimly by the courts. Case law and academic study in this field have found the following issues associated with covert recordings in family proceedings:
- Covertly recording family members, particularly children, can lead to a climate of distrust that is not conducive to open and trusting communication, which is so vital in resolving family disputes.
- It is very easy for the best interests of a child to be lost when two parents are covertly recording each other, and the child.
- The probative value of these recordings can vary hugely. In many cases the covert recording will only tell ‘half the story’ and may well be managed and staged.
- The use of these recordings can affect a family’s standing in the local community.
- Increased transparency (including the use of overt recordings) with professionals and social workers will lead to a decreased use of covert recordings in the field of public family law.
Advice to our clients
We are often asked about the use of recording devices at handovers, particularly when there is a history of aggressive and abusive behaviour. We advise our clients to build open and discursive relationships with their co-parents. Making covert recordings is unlikely to foster these relationships.
If there are safeguarding concerns, there are other options that a court are likely to accept have been used to promote arrangements that are in a child’s best interests, whilst providing protection for a vulnerable parent. For example, bringing a friend to a handover can help to alleviate anxieties and provide a witness for parents who have concerns about their ex-partner’s temperament.
For further advice in relation to complex children cases, please contact Rachel Frost-Smith or another member of the Birketts Family Team.
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Rachel Frost-Smith
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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 April 2022.