We reviewed the use of surveillance within relationships in our blog in March 2017. We will review the same again today, but from an alternative perspective.
Sir James Munby, President of the Family Division of the High Court stated covert recordings are becoming a ‘much more pressing issue’ in family proceedings. By their very nature, family proceedings are sensitive for all parties involved whether for children, family members or any professionals involved. This can become particularly strained if those involved in proceedings feel they no longer have privacy and trust within personal relationship.
Sir James Munby highlighted covert recordings include recordings of children, family members and professionals, which are then placed before the courts to support by a party to support their position. They are also used in attempt to undermine the position of other parties involved in the case within the court arena.
You may recall from our blog in March that recording equipment is becoming readily available to society and is becoming more sophisticated. For example, smart watches are available on the open market and can include functions such as tracking the watch. This enables a person with access to the watch to track the whereabouts of the wearer. There is also a function whereby a parent or other party with access to the watch can listen to the surrounding environment of the wearer. These functions may be argued to be protective measures set up for children and vulnerable adults; however there will be instances when these functions may be used without the knowledge or consent of the wearer.
For a recording to be admissible in Court, it must be relevant to the issues before the Court, such as it relates to the welfare of a child. The Judge dealing with the matter is given powers under the Family Procedure Rules, r22.1 enabling them to exclude evidence. A Judge may exclude a recording if it is not relevant to issues before the Court. If the Judge makes the decision to exclude evidence they will have to provide clear reasons for the exclusion of the recordings in the event the decision was appealed.
Any recordings before the Court whether covertly or overtly recorded may be challenged may have their authenticity challenged by any of the party’s to proceedings. One party may argue that the recording has been edited or a party may deny that it is actually them on the recording. If there is a transcript of the audio recording it could be argued that the same has been altered. To overcome this problem, the transcript and audio files need to be submitted to all parties within the proceedings as well as the Judge.
In the case of Re C (a child)  the Judge made the decision to exclude all covert and overt recordings made by the father. The recordings were of the party’s 7 year old daughter at home, at school and out and about. The recordings had been edited; they included extensive questioning by the father of the child which were leading and suggestive. It was deemed that he was looking for a way to criticise the mother, the recordings were not considered child focused and were considered harmful to the mother and the child. In this case a Non-Molestation Order was issued by a lower court preventing any further recording of the child and mother, other than the child’s achievements. The Court of Appeal subsequently upheld the injunction.
In H v Dent  the father made covert recording of conversations he had with Cafcass and sought to use these to demonstrate he was put under undue pressure or duress from Cafcass to agree to a Consent Order. Mrs Justice Roberts in this instance listened to the recordings but held they did not support the father’s case.
In M v F (covert recordings of children)  the Judge was asked to decide whether the child should continue living with the father and his partner or reside with the mother. Various professionals were involved in the case and the father and his partner wished to know what the child was saying to them. They went as far as sewing a recording device into the child’s clothes when she had meeting scheduled with professionals. The transcripts of these recordings were in excess of 100 pages. The recordings were admitted as evidence on the basis that the manner in which they were collected was directly relevant to the assessment of the father and his partner’s ability to adequately care for the child. The Judge stated “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”. He concluded the child should live with the mother and one of the bases for this conclusion was the extensive recordings as well as the father and his partner being unable to meet the emotional needs of the child. The Judge summarised his judgement stating “experience suggest that such activities normally say more about the recorder than the recorded”.
Cafcass in its Operating Framework state:
“We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge”.
If you are having troubles in respect of child matters, please do not hesitate to contact us. We specialise in all areas of family law and the team is headed up by Pauline McNamara. If you wish to arrange your free initial consultation today, please telephone us on 0151 375 9968 or email .