Covert recordings are any recording made without the express knowledge and permission of the person recorded, whether by audio or video: Family Justice Council.
Recordings can be the only way of proving behaviour which is denied by the other parent, or of proving that a child does or does not behave in a particular way, did or did not say something relevant. The case law on such recordings suggests that the first question to be asked regarding any covert recording is, are the recordings relevant? Secondly, have the recordings been edited? Where the recording holds significant evidential weight, and assists a party in proving something that they would otherwise struggle to prove, they may be admissible.
Rule 22.1 and 22.2 of the Family Proceedings Rules 2010 give the court discretion as to what can and cannot be adduced in evidence. Admissibility therefore depends on the facts.
Medway Council v A & Other (Learning Disability: Foster Placement [2015] EWFC B66: (https://www.bailii.org/ew/cases/EWFC/OJ/2015/B66.html). In this public law case recordings were made of a local authority foster carer making racist and inappropriate comments to a mother and child. The parents’ allegations that the foster carer had been abusive and racially insensitive had been ‘treated dismissively’ until the recordings were produced. The court permitted the recordings to be admitted in evidence, and relied on them when considering the allegations and findings.
The judge in the Medway case, HHJ Lazarus, said that in this case the parents allegations were frankly treated dismissively from the outset. But for this court’s willingness to permit consideration and transcription of the recordings, despite the extreme lateness that they were provided, in combination with the requirement that the foster carer give evidence, it would have been impossible to gain a just and proper understanding of this case.
“What is clear is that these recordings were central to a proper understanding of the case. If there had been an earlier order debarring the parents from relying upon them unless they were provided by a certain date, this may have triggered their provision, but I note that if I had taken that stance at the outset of a final hearing it would have resulted in a serious misunderstanding of the case. I remain puzzled as to why these recordings were not the subject of directions at the IRH.”
In the case of Re B (A Child) [2017] EWCA 1579, [2018] 1 FLR 1205. (https://www.bailii.org/ew/cases/EWCA/Civ/2017/1579.html), the then President of the Family Division drew a distinction between recordings of children, and recordings of professionals. In this case the father made allegations of parental alienation, and made covert recordings over several years, including of his conversations with Cafcass, a social worker and a solicitor. The President observed at paragraph 12 that:
‘it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.’
Recording children and adults: M v F (Covert Recording of Children) [2016] EWFC 29, [2017] 1 FLR 1304: (https://www.bailii.org/ew/cases/EWFC/HCJ/2016/29.html). In this case the father had sewn a recording device into his child’s clothing and produced selective recordings over four hours long, of sixteen conversations at meetings with professionals. The child did not know about the recording. The court allowed the recordings into evidence, not as to facts, but as to the issue of the father’s parenting capacity, and ability to meet his child’s emotional needs. Peter Jackson J said 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.
‘In this case, I am in no doubt that the recordings were rightly admitted. The manner in which they were made is directly relevant to an assessment of the parenting offered by the father and bis partner. They are so extensive that it would be unreal to exclude them, particularly after I heard evidence from the father about their creation. It would be theoretically possible for the court to receive evidence of the making of the recordings but not their contents, but this would risk unbalancing the evidence if the contents were in fact of any value.’
The court noted the Cafcass Operating Framework (2.27) said that its officers should have nothing to fear from covert recording, but should bring it to the court’s attention if they become aware of it.
Recording adults: Re F (Care Proceedings: Failures of Expert [2016] EWHC 2149. (https://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html). In this case the mother covertly recorded a consultant psychologist, alleging fabrication by the expert, false reporting and inaccurate quoting. The court permitted the recordings, and was satisfied that the mother was misquoted in a psychological report. The court said:
‘It was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by the expert and attributed to the mother. That involves a manipulation of material which is wholly unacceptable and, at the very least, falls below the standard that any court is entitled to expect of any expert witness.’
Whilst the courts and many professionals widely disapprove of covert recordings, they can be considered in evidence if what they record is relevant to the main issues in the case.
