Children disputes are often complicated affairs, and separating couples can become very acrimonious when making child arrangements. Sadly, some parents have resorted to underhand techniques in order to ‘one-up’ their ex. Children can often end up in the middle of these disputes which are harmful to both their short- and long-term wellbeing.
One such method has been increasing at worrying rates, so much so that Family Justice Council has recently released a guidance document exploring the issue and giving advice to family law professionals.
Covert recordings have been on the rise with the advances in technology and in family law these are sometimes used as evidence in cases to ‘prove’ that one parent is unsuitable for the child to live with. Covert recordings are video or audio recordings that are made without the express permission of those being recorded. In some cases, the parents of the child record the other parent without their knowledge. However, sometimes, the child is asked by one parent to record a family dispute without the other parent’s knowledge.
Although these are being submitted more and more often as evidence, as yet, there has been little guidance for courts on this matter, excepting that covert recordings are not illegal. It has been noted that there is sometimes value in the recording, but the overarching feeling is that intruding on privacy can cause further harm and there can be concerns about the accuracy of the recording.
Where one party is aware and the other is not, an unnatural situation is created, where the knowing parent can dial down their reactions and provoke the other party, producing a false reality and one that does not necessarily reflect the reality of home life.
When used it court, it can seriously backfire on the parent who asked their child to record as the courts do not welcome the recordings and tend not to allow them to form part of the evidence for the case.
The impact on children
Involving children in parental disputes can be dangerous and considered as manipulative – it can put them in the middle, forcing them to choose between their parents, potentially causing psychological harm. It undermines the parent-child relationship, asking the child to take sides and lie to their other parents. The court, as family law professionals will be aware, is hopeful that children can retain positive relationships with both their parents after separation or divorce
Children are generally kept out of court proceedings as they can be emotionally damaging. In rare circumstances, children can give evidence, but this is primarily given in advance to trained professionals such as Cafcass who will relay the child’s wishes and feelings to the parents and to the court.
Cafcass themselves also take a negative view to children’s involvement in their parents’ disputes. The Pathfinder pilot, a scheme designed, among other things, to improve children experiences through the Family Justice System and ensure their wishes and feelings are heard, has seen positive results in the last two and a half years since it’s implementation. Nevertheless, these insights are sought by trained professionals and children’s welfare is considered the highest priority. Forcing children into acrimonious parental disputes can only push this priority further away.
Summary of guidance provided by the Family Justice Council
The focus of the guidance is not so much on whether covert recordings are permitted, although it specified that there is an ‘absolute prohibition on the covert recording of court hearings’. The main concern is whether the recording is justified, and in many cases there will be unexpected and undesired outcomes.
The guidance nots that almost all covert recordings will be ‘hearsay evidence’ and any recordings need to be considered in the same way as documents to which evidential rule apply are, and in most cases will be dismissed as unreliable. There may be specific hearings to investigate whether the recording can be used as evidence but the emphasis will remain on whether it is worthwhile to investigate the recording as evidence, or whether the case can be dealt with without it.
What’s next?
The FJC’s guidance has not set law in this matter and covert recordings, except of court proceedings, are legal. However, family courts now have a more centralised point from which to make their own decisions and more structure to their considerations of the evidence.
With technology continuing to advance seemingly with no slowing, it is yet to be seen what could be brought as evidence in family court proceedings. However, what is certain is that the FJC will maintain the priority of children’s welfare.
Read the full guidance document.
Ciara Pugh is a Senior Associate at Stowe Family Law.
