Covert recordings in Children Law Proceedings: A summary of the Family Justice Council’s guidance on their use in proceedings
What do you advise your client when they ask if they can record the other parent’s calls or meetings?
Many clients arrive for their initial consultation already armed with extensive undercover recordings of the other parent. These often include audio or video evidence captured covertly during interactions that they believed may become legally significant. As a result, lawyers are increasingly faced with the decision as to what to do with the volumes of clandestinely obtained material at the outset.
Covert recordings are any recordings made without the express knowledge and permission of the people being recorded whether by audio or video.
As modern technology advances, so does the frequency of covert recordings in family law proceedings. In recent years, the court is increasingly being asked to consider such recordings as evidence within family proceedings. Former President of the Family Division, Sir James Munby identified the need for guidance on covert recordings as he remarked on the ‘myriad of issues’ caused by them in the case of Re B (A Child) [2017] EWCA Civ 1579.
In response to the growing use of covert recordings, the Family Justice Council has issued new guidance designed to address the issues and consequences of the use of covert recordings by individuals and provides guidance on their use to help lead to greater consistency in approach.
Case management
Where a party intends to rely on a covert recording, the court will be required to engage in focussed case management before the admissibility of a covert recording and its probative value can be established. It is imperative to identify any issue relating to covert recordings at the earliest possible stage in order to manage its impact on the case and avoid costly litigation.
It is essential that where parties seek to admit covert recordings into evidence the issue is raised at an early opportunity as the court will require time to determine the nature and admissibility of the recordings.
In summary, the court will need to consider the following:
- Relevance: The court must determine whether the content of the recording is logically probative to the issues in the case. If not, the fact of the recording itself may still be relevant to assess the conduct of the person who made it.
- Probative Value: The court will evaluate whether the recording provides evidence of what was said or done and whether it is reliable and truthful.
- Authenticity: The court must establish the authenticity of the recording, ensuring it is unedited and complete. Forensic analysis may be required if authenticity is disputed.
- Impact on Welfare: The court will consider the emotional and psychological harm caused by the recording, particularly if children are involved.
- Invasion of Privacy: The court will evaluate whether the recording constitutes an invasion of privacy or harassment.
- Publication Risks: The court may issue injunctions to prevent harmful publication of recordings, especially on social media.
Process
An application for permission to rely on a covert recording should be made on notice to the other parties by way of an application using Form C2. As a minimum, the application should provide a summary of the following:
- the nature of the recordings – its context, whether it is edited, and the date(s) and time(s);
- the method of the recording and why it was obtained covertly; and
- the relevance of the contents to the issues in the proceedings.
Directions
Upon either being made aware of the existence of and/or intention to rely on a covert recording or by receipt of an application, the court will need to consider directions necessary to determine whether the recording should be admitted and issues relevant to any weight to be given to it, the court will consider the following:
- Disclosure: The court will direct how recordings should be disclosed to other parties, including whether transcripts are required.
- Expert Evidence: If authenticity is disputed, the court may order forensic analysis of the recording.
- Costs: The court will consider the costs implications of admitting covert recordings, including transcription and expert analysis.
By following these practices, the courts can ensure that covert recordings are managed fairly, proportionately, and with due regard to the welfare of all parties involved, especially children.
Conclusion
Ultimately, it is important to remember that whilst covert recordings may have some value, they can intrude on the privacy of parents, children, and professionals, thus causing harm.
While undercover recordings in family proceedings may be well intentioned, they raise serious ethical, legal, and evidentiary concerns. Such recordings can risk emotional harm to the child, compromise the integrity of the proceedings and may not be admissible in court.
But don’t we say that “A picture is worth a thousand words”.
Carolina Marín Pedreño is a Partner and Head of Children Department, and Kandice Phillips is a Trainee Solicitor, at Dawson Cornwell
