Guidance on the use of and admissibility of recording secretly made to provide evidence for family law proceedings has been published by the Family Justice Council; recognising the sparsity of advice in this complex area of law.
Covert recordings in Family Law proceedings concerning children: Family Justice Council Guidance’, follows an increased use of covert recordings in family law proceedings and the need for clear guidance, and the protection and privacy of those subject to the recording.
“This has been a growing area for the courts to consider with little guidance available to judges or other professionals. This guidance from the Family Justice Council (FJC) explores the issues and examines the consequences arising from the use of covert recordings by private individuals and sets out guidance that we hope will lead to greater consistency in approach”
said President of the Family Division of England and Wales and Chair of the Family Justice Council, Sir Andrew McFarlane, in his foreword, adding there are legal and emotional implications when considering the admission of recording which could be considered an invasion of privacy
The guidance is an acknowledgment of courts being increasingly asked to consider such materials, easily obtainable through the use of readily available tools and technology.
Critically the guidance is not to be considered a guide on how to achieve covert recordings which will be admissible in court. It points to the potentially harmful and unintended impact of secretly recording parents, children, and professionals which ‘rarely promote a child’s welfare, whatever the intention’ and is likely to be considered a breach of privacy.There are also costs considerations associated with the potential litigation required to manage the inclusion of any recordings in proceedings.
The guidance goes on to say in any event the inclusion of covert recordings in proceedings is likely to be hearsay evidence and recordings must be considered as ‘documents’ to which the relevant evidential rules apply. Indeed the guidance says when presented with covert recordings
“It is suggested that, whilst it may ultimately be appropriate to read/listen to the recordings, enormous care should be taken to consider the correct approach before any recording is either viewed or listened to, and before it is assumed to be genuine.”
Process, relevance, the probative value of the recording to the proceedings, authenticity and scope are all key considerations with the guidance providing key points of reference for practitioners to consider.
The impact on children, particularly where a child may be required to give evidence of the authenticity and weight of the recording, which could cause substantial stress and psychological harm to a child should be carefully considered. However, there is no presumption that children cannot give oral evidence.
For due process to be followed courts will need to provide directions which cover
- The method of disclosure of the recordings to the other parties, including whether transcripts are required.
- Establishing the full scope of the recordings, how they came about, and which recordings fall to be considered.
- Establishing authenticity if in dispute, including any issues relating to editing.
- Establishing the probative value of the recordings to relevant issues in dispute.
- Consideration of implications for the welfare of the parties, and in particular the child if having been the subject of covert recordings.
- Consideration of costs arising from the application.
- Any further hearing to determine the issue of admissibility.
