Family lawyers and the sleuth client
Family briefing: what approach should be taken to covert recordings taken by a parent involved in a child care dispute? The question has already come before the English courts in a number of cases
Family lawyers are increasingly faced with recorded evidence produced by clients undertaking their own evidence gathering against the opposing party and proferred as conclusive evidence in support of their claims. A recent experience caused me to ponder what the law actually provides about this, as although I had always assumed such evidence was frowned on, I wanted to explore the authorities. I was rather surprised by the findings.
What about data protection rules?
The Data Protection Act 1998 and the Data Protection Act 2018, part 4 make clear that such recordings are not illegal as such. You do not need permission to record a person with the purpose of this being used for your personal, family or household affairs, and importantly the person being recorded does not need to give consent. There is some protection in ECHR article 8, which preserves the need for respect for private life, but that applies where the material is distributed or published without consent. It will not apply if it is relied on in a closed court matter, which would be the case where child matters are involved.
What case law is there?
It would appear that the matter has only featured in English cases, but there seems no reason to distinguish them just for that reason.
In Re C (A child)  EWCA Civ 1096 a father refused to stop video and audio recording during handovers of his daughter. He wanted to use the recordings as evidence of the mother’s behaviour. At a previous hearing he had agreed to cease recording, but he failed to honour this and a non-molestation order was made against him as the court held his conduct abusive. The father appealed, saying the recordings were useful in terms of the legal proceedings. His appeal was dismissed, the recording being upheld as a form of intimidation and abuse.
M v F (Covert Recording of Children)  EWFC 29 concerned a father who placed a recording device on a primary school age child in order to hear what she was saying to a social worker, a family support worker and guardian whilst at school. The device recorded everything the child said on the day she was due to meet these others. The father and his new partner did this for 18 months; he then transcribed recordings which he believed to be relevant. At the hearing, the court ordered the child to reside with her mother.
It was held that by recording the child, the father and partner could not meet the child’s emotional needs. One factor was that they considered recording the child appropriate. This increased the time and cost of the hearing and was not useful. Further, the father had not had the recordings transcribed independently and had been quite selective about those parts he transcribed. The recordings were permitted as evidence, but the father lost his case at least in part due to this action.
In the opinion of the court, recording a child without their knowledge was “almost always likely to be wrong… Anyone who is considering doing something similar should therefore first think carefully about the consequences… such activities normally say more about the recorder than the recorded... but... it is not possible to generalise”.
In Re B (A child) (Family Proceedings: Judicial Guidance)  EWCA Civ 1579 the President of the Family Division acknowledged the need for proper guidance as to how courts approach the use of covert recordings in family proceedings, which the Family Justice Council would be invited to consider. Here a father had used recordings to show how the mother was deliberately alienating their child from him. He failed on the merits. The court criticised the judge below for purporting to give guidance on recording without the approval of the President of the Family Division.
On the other hand, in Medway Council v AP  EWFC B66 a mother, who had learning disabilities, gave birth to a baby boy who was placed with foster parents. The mother produced recordings to support accusations that the foster carers were verbally, racially and physically abusing her. This judgment held that the recordings of the incidents were central to a proper understanding of the case and it was necessary to consider them in combination with oral evidence.
In conclusion, although not inadmissible, family lawyers should always be mindful of the potential for such recordings to be construed against their client and it is probably only in exceptional cases that they should ever be sought to be relied on. If they are to be transcribed and are deemed to be important to your client’s case, have them independently and professionally transcribed, as selective transcription can affect the weight such evidence will be given.
Fiona Sasan, partner, Morton Fraser LLP