Legal Update: Covert recordings as evidence

Kelly Reeve
Tuesday, June 21, 2016

Kelly Reeve, senior legal consultant and team leader for the Child Law Advice Service, considers the implications of cases concerning the use of covert recordings as evidence in family law proceedings.

At the Child Law Advice Service a common query from parents going through the courts for private family law disputes is: "I have a recording of my ex-partner or child proving X, Y and Z, can I submit it to the court"? The ease at which recordings can now be made on handheld and covert devices makes this type of query more common and it is one which the family courts increasingly have to deal with.

Some of these issues were considered in the recent case of M v F (Covert Recording of Children) [2016] EWFC 29 in which Mr Justice Peter Jackson gave a stark warning to anyone considering covertly recording a child for evidence in family proceedings; that they should "first think carefully about the consequences".

Jackson J opened his judgment remarking how "it is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence".

The case concerned a protracted dispute about which parent a young child, "Tara", should reside with. The father admitted taking covert recordings of Tara's conversations in meetings with various professionals between November 2014 and March 2016. The father's partner had sewed small recording bugs into Tara's blazer pocket and raincoat at the start of the school day, often recording all interactions throughout the day before her meeting with professionals after school. The father also recorded conversations with professionals on his iPad and iPhone. Tara was unaware that she was being recorded. The father also admitted using a private detective to monitor the mother, taking screenshots of her Facebook page and photographing the mother with her live-in boyfriend at her home. The father then sought to rely on a number of these recordings and transcripts in family proceedings relating to residence.

Jackson J concluded that Tara should move to live with her mother as the father and his partner could not meet Tara's emotional needs as main carers and one clear indicator of this was the extensive recordings of Tara's conversations. Jackson J noted how the recordings further damaged the relationships between the adults in Tara's life, demonstrated the father's inability to trust professionals and created a secret which could affect Tara's relationship with her father and his partner. Jackson J found that Tara was at risk of harm from the recordings because if she becomes aware of the material this could cause confusion, distress and undermine her ability to trust others. Tara would have to be informed in a sensitive and controlled manner about the recordings and it would involve a conspiracy to try to withhold the facts from her. The father was also ordered to pay a proportion of the mother's costs attributable to the considerable time spent on the recordings.

In this case, Jackson J did not consider whether taking the recordings was lawful, however he opined that there may be good arguments for saying that this type of recording went beyond collecting data for "domestic purposes" and thus would be prohibited under the Data Protection Act 1998.

At the end of the judgment, Jackson J touched upon the situation of recording adults covertly for family proceedings and, while noting that these cases will be very fact dependent, cast some doubt on the value of recordings to family proceedings in general.

Evidence of intimidation

In the case of Re C [2015] EWCA Civ 1096 concerning a father's recording of the mother and child during handovers for contact, the Court of Appeal accepted that recording an adult, covertly or overtly, could be evidence of intimidation and thus grounds for a non-molestation order under the Family Law Act 1996.

In that case, the courts also noted the problems of such recordings as an evidential tool; recognising the difficulties with recordings which are incomplete, have been edited and/or contain leading and suggestive questioning of a child.

In light of these judgments, parents should take heed of the fact that courts have strongly disapproved of covert recording of children for evidence in family proceedings. Similarly, the covert recording of adults may be grounds for an injunction against the recording parent. Courts have regularly suggested that covert recordings are rarely of evidential use in court especially if the recording is piecemeal or takes an incident out of context. As seen in the cases of M v F and Re C, the consequence of covert recording may well lead to a finding that a parent is not able to meet a child's emotional needs and can result in limited or reduced contact with the child. Parents should strongly consider whether making a recording is in the best interests of the child or risks causing emotional harm to the child concerned in order to ensure that the child's welfare remains the fundamental focus in any private child law proceedings.

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Legal Update is produced in association with experts at Coram Children's Legal Centre

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