Family cases – To record…..or not to record….that is the question?

More and more we are getting clients who have started to record telephone calls, interviews, handovers, or ask us if they should do it…or not do it

Covert recording in the world generally is on the up and up.   Technology these days is becoming smarter and so are the people who seek to use it.   We have all read and seen on Panorama and other investigative programmes where covert recordings have been made in Care Homes for the Elderly and also in Children’s Day Nurseries…….which have led to convictions and confirmation of suspected abuses which have been taking place in these establishments.

It is becoming increasingly easy to purchase fairly cheap and sophisticated recording and tracking devices either on-line or on the high street. It is easy to recognise that some of the functions such devices contain can be desirable to protect children or vulnerable adults, but what of their other uses?

The law in relation to Family cases is currently less than clear, and Sir James Mundy, President of the Family Division of the High Court has said that covert recording has become ‘a much more pressing issue’. Under FPR r.22.1 although this type of evidence is admissible in proceedings, a Judge does have the power to exclude it under this rule. It appears that this type of evidence may be permissible, as in matters involving children it could be that it may be relevant to the child’s welfare or indeed may assist and be helpful to the Judge when looking at a matter in the round.

Some useful comments can be extracted from Re: M & F (covert recording of children) [2016] EWFC 29.   This is a case where a Father and his partner made extensive recordings of the child involved, even going to such lengths as sewing into the child’s clothes recording devices. It is of note that the transcripts of these recordings ran in excess of 100 pages!! Jackson J (as he then was) stated at the outset of his judgment in that case. “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…..this should hardly need saying”. And he concluded with “experience suggests that such activities normally say more about the recorder than the recording”.

It is somewhat surprising that there is at the moment very sparse authority or indeed judicial guidance on this issue.   The Courts are going to have to grapple with both legal and procedural issues that such recordings will involve.   In the first instance a Judge faced with such a transcript will have to first satisfy himself that the evidence produced is relevant to the issues before the court, he will also have to be satisfied that the recording is bona fide, that it has not been edited in any way, and that the voices heard are those of the person/people that they are purported to be.   This will undoubtedly lead to protracted and lengthy hearings.

As things stand this is a very difficult area in which one can provide comprehensive guidance about, and therefore very difficult to be able to advise a client appropriately. It is in need of some clear guidance from the President or a Practice Direction setting out all the risks that a party seeking to use and rely on this type of evidence may face.   Such guidance if produced may then go some way in preventing many litigants seeking to produce many hours of what may be potentially irrelevant recordings……or indeed recordings that may in fact have the opposite effect to that desired.

I reiterate the warning given by Jackson J, as in the case in point it ended with the him making a Child Arrangements Order that the child would live with the Mother and the Father was ordered to meet the costs the Mother had incurred in dealing with the covert recordings. So it can be said……Be careful what you wish for….

Where does that leave us…..sadly with more questions than answers:

(i) It will extend the time of a hearing if the Court has to listen to recordings. If you allow recordings by one side….should you extend the courtesy to the other side?

(ii) Will recordings be used more frequently……if so……what are the benefits? And to whom?

(iii) Will they be able to demonstrate the truth being put forward by one party over another?

(iv) In the current climate is absolute transparency something that is going to be demanded?

(v)   Who will have ownership of the recordings?

It does not end there…..

It also raises the issue of whether a parent can or should record a conversation with a Social Worker? A Social Worker is expected and should be able to report honestly about a conversation….but we all know how things can at times become distorted and taken out of context…..the real meaning of what the parent is trying to say can become obscure and misunderstood.   So what is the answer ….is this permissible?

What happens when a parent records a child saying something entirely different to the purported discussion the child has had with the Social Worker……has the child been primed to say what that parent wants to hear maybe? Let’s face it we all know that a child will say different things to different people.   They want to please everyone…they do not ever want to be the ‘meat in the sandwich’ between warring parents, and neither do they want to be held responsible for what they may say to a Social Worker.   Consider if the Social Worker has to record their conversations with a child…on one hand it may support what the Social Worker says happens and it would alleviate the suspicion that parents inevitably have that the Social Worker has asked inappropriate and leading questions to obtain an answer they want to put forward, which assists their case. On the other hand if it is recorded, how does this sit with the child’s privacy being invaded……their right to be able to be confident to say whatever they really feel and to feel safe that they can do this.

This thorny issue has now been raised in Re B (A child) [2017] EWCA Civ 1579 [2017] All ER (D) 100 (Oct) which went to Appeal. The case concerns covert recordings in a private law proceedings.   In the first instance the Circuit Judge allowed the covert recordings but directed that little weight should be given to them.   He went on in his judgment to give some guidance on covert recordings and directed publication of his Judgment. The Appeal was based on whether he had been right to place little weight on the recordings, and also concerns about his approach, and ‘guidance’ on covert recordings and how they can be used or whether leave for permission for them to be considered was required.   Mr James Mumby sitting with King LJ ruled that the Judge had rightly allowed the recordings to be submitted, but he was seriously concerned about, the Judge’s guidance and that this was an exercise that was not appropriate for a Circuit Judge. The President did not agree with HHJ Bellamy that ‘…as a general principle, the Family Court should deprecate and strongly discourage such making of covert recordings’, considering that to be sweeping, unnuanced and potentially misleading. The sorts of questions that might be asked included who was doing the recording, of whom and for what reason. The President also doubted that the Circuit Judge was right when he stated that: “anyone seeking to rely on such material….must apply to the court for permission”. The issue required more detailed analysis and that included consideration of the Family Proceeding Rules (2010) and that guidance for the family

Court is formulated and disseminated, by practice directions from the President, or guidance from the Family Justice Council which the President typically endorses. The Judgment of HHJ Bellamy was not to be made public or available.

All in all, what we can say is……that this poses some very tricky questions….but without any shadow of doubt….tricky questions that are going to become more of a live issue in all family proceedings in the future.