Is Guidance Needed in Covert Recordings in the Family Court?

Frequently in this modern age, clients in private law proceedings, will have covertly record either their children or the other party to proceedings saying something that they think that the court ought to hear at some stage during the proceedings. The usual test as to whether it should be introduced into evidence is whether the welfare of the child demands that the court should hear or see that evidence and decide what weight to give it. This is despite the fact that such recordings are considered to be underhand and should be frowned upon generally. There is no real guidance as to how these recordings should be dealt with by the family court however.

In the relatively recent case of Re B (A Child) [2017] EWCA Civ1579 a Circuit Judge, HHJ Bellamy took it upon himself to try to assist in this area and as a result the issue had to be looked at by the Court of Appeal as a matter of public importance.

The facts of the case need not be reiterated here, save to say that the father in private law proceedings had made recordings of telephone conversations and interviews with a social worker, Cafcass and a solicitor and sought for those recordings to be entered into evidence. The judge allowed the recordings, and he also invited interested bodies to make submissions in relation to the use of covert recordings generally. He justified doing that by saying that he wanted to ”stimulate discussions” on this issue. He then ordered that his judgment, which included eighteen paragraphs about the use of covert recordings, should be published. The father appealed against the decision inter alia, for the judgment to be published and the Court of Appeal decided that there was compelling reason for it to hear a full appeal in relation to the order that the judgment should be published.

The appeal was heard by the President and he felt that the use of covert recordings in proceedings are nothing new and is increasingly becoming a much more pressing issue in the Family Court in recent years, partly by the technological advancements in recording equipment but also as a result of the lack of trust by parties in proceedings, perceived or otherwise, in the family justice system and those working in it. He singled out recordings made of children, family members and professionals like social workers, but acknowledged that the last is not exhaustive.

The President was of the view that covert recordings in relation to the Family Court involves a myriad of issues. For example:

(a) whether the recording is lawful;

(b) the admissibility of the recording;

(c) a variety of other evidential and practice issues, and

(d) who made the recording and why.

Having reviewed the relevant sections of the judgment of HHJ Bellamy, the President was clear that the giving of guidance to the Family Court on this issue should not be determined by a Circuit Judge, however helpful his intentions were. Instead it should come in the usual ways; whether it be from the President issuing a Practice Direction or Practice Guidance, the Family Justice Council, or ‘guidance judgments’ delivered either by the President or by another judge of the Family Division, which has been read and approved by the President.

In allowing the appeal, which was endorsed by Lady King, the President considered:

(a) whether the judgment should be published with a ‘health warning’ regarding the paragraphs dealing with the covert recordings;

(b) whether those paragraphs relating to the covert recordings should be criticised, or

(c) to allow the judgment to be published without some of those paragraphs.

In the final analysis the President felt that to direct that the judgment is not published was the most attractive and appropriate alternative open to the court.

Despite being criticised, HHJ Bellamy should be applauded for bringing this issue to the fore, as practitioners are sometimes left not being sure how to advise their clients when faced with the issue of covert recordings. This is because it is sometimes difficult to know how that evidence will be treated by a particular judge. If there are clear guidelines then everyone will have to follow them, judges included. We will wait to see how this issue evolves in the near future, but the answer to the question that this article poses is in my view a resounding yes.