Recording of Children in Private Children’s Law cases

I am very gratified in seeing the recent case of M v F (Covert Recording of Children) (2016) EWFC Peter Jackson J, were he gives yet another insightful and sensible judgment, this time in relation to the recording of children.

I, like many other family practitioners I am sure, have had to deal with this thorny and all too common issue in some form or other. I currently have a case where it features in the form of audio recordings, which were unashamedly utilised by the parent in order to further his case. It appears that most parents think there is nothing wrong with it …well…to quote them… it ‘proves what  (they) are saying doesn’t it?!’

My favourite part of this Judgment is where Jackson J says: ‘such activities normally say more about the recorder than the recorded” (Para 7). I couldn’t agree more. In this case, the facts where probably at the higher end of the spectrum in terms of unattractiveness, as they involved the covert recording of a child by way of sewing ‘bugs’ into her clothing, recordings on an iPhone and iPad. However, I think this case will be of much wider application.

The main import of his Judgment was that the very act of recording a child was part of the parenting offered to the child, which was being assessed by professionals and the court. The Judge ‘noted that the manner in which the recordings were made were directly relevant to an assessment of the parenting offered by the father’ (Para 27).

In this case the issue before the court was where the child should live and they were and had been for some time, living with the father and his partner. However the Judge ordered that the child live with the Mother at the end of the hearing, and the recording of the child played no small part in that.

The Judge held that the consequences of the father’s actions were to  (i) damage further the relationship between the relevant adults, (ii) demonstrate the father’s ability to trust professionals, (iii) create a secret the child might later unearth. (iv) affect the family’s standing in the community (for much of the recordings the child was at school and other children were also being covertly recorded, which would probably not sit well with other parents), (v) create enormous wasted effort on the part of the father and his partner in setting up and transcribing the recordings (with the father ordered to pay the mother’s costs (£9,240) attributable to the time spent on them) and (vi) increase the costs of the proceedings. Not a single piece of useful information was produced.

The Judge held: ‘The main reason for changing T’s home base was the conclusion that the father and his partner could not meet her needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing, something she described as “really disturbing”’ (Para 4). It is hard to imagine a more devastating comment in a judgment than that in the circumstances.

Additionally, it may also be illegal under the Data Protection Act 1998, which was an issue that did not need to be decided in this case, although the Judge cast doubt on whether the exemption afforded under s.36 of the Act for use of such data for ‘domestic purposes’ applied in such circumstances, suggesting that ‘there may be good arguments for saying that the covert recordings of individuals, and particularly children for the purpose of evidence-gathering in family proceedings would not benefit from the domestic purposes exemption’ (Para 3.26). We will have to wait until another day perhaps to have that question answered.

The Judge considered (Para 1) that concealing a device on a child for the purpose of gathering evidence in family proceedings is ‘almost always likely to be wrong…whether or not the child is aware of it’s presence’.  The Judge opined ‘this should hardly need saying’. However, in my experience, it very much does need saying and I for one am so glad he has said it.