Question: Can you use recordings made of others without their knowledge as evidence?

Covert recording in the context of family courts potentially involves a myriad of issues, very few of which, have been considered by the courts. 

One party may wish to covertly record another within proceedings for the following purposes

a) gathering of information/evidence that is relevant to an issue on the case or,

b) behaviour as part of a course of conduct that can be seen as designed to control and/or intimidate the other party/parties.

Indeed, in C (A Child) [2015] EWCA Civ 1096, a mother was granted a non-molestation order as the covert recordings carried out by the father amounted to intimidation. 

In the recent case of Re B (A CHILD) (2017) EWCA 1579 a father sought to appeal orders related to covert recording supporting his contention that the mother was deliberately alienating his child against him.

The judge concluded that the recordings were admissible and relevant, but that little weight should be attached to them and then proceeded to provide guidance as to how covert recordings should be approached.

In allowing the appeal the President of the Family Division has now invited the Family Justice Council to consider the whole question of covert recordings from a multi-disciplinary viewpoint.

Whilst definitive guidance is awaited there are a number of cases which are instructive of a possible approach:

Recording of Conversations with Social Workers and other professionals

“CAN A RECORDING MADE BY A PARENT BE RELIED ON IN COURT? Potentially, yes – but the court would have to give permission. A court is unlikely to give permission unless it is clear that the recording is both relevant and reliable. A court is more likely to give permission if a recording is of good audio / visual quality and is demonstrably a record of the entire meeting or interview, rather than an edited selection (a parent who wishes to rely on a recording of a meeting or conversation will need to provide a recording of what everyone present has said, not just the words of one person). If a meeting or interview has been made covertly it may be difficult to demonstrate that the recording is complete and that something said or done is not being taken out of context. The court is likely to require a transcript to be prepared, but the original digital or analogue recording should be made available to all participants to hear / view.”

(Parents recording social worker- a guidance note for parents and professionals (December 2015))

In Re F (A MINOR) (2016) EWHC 2149 covert recordings were made by a mother during assessment meetings with a consultant clinical psychologist. Findings were sought by the mother that the expert had significantly misquoted and adversely misrepresented her. The expert had manipulated the material, which was wholly unacceptable and fell far below the standard expected of any expert witness. Such fundamental failures of methodology meant that no judge could fairly rely on the conclusions of the expert.

Recording meetings with a Child

(M v F (covert recording of children) [2016] EWFC 29)‘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, ……………… experience suggests that such activities normally say more about the recorder that the recorded’.

Conclusion

Wherever possible, there should be a formal application for permission to admit the recordings in good time prior to the hearing at which they will be used.

The recording should be made available to the other parties along with a transcript.

The factors which the Court will wish to consider will include the following:

a) the circumstances in which the recording was made;

b) whether the Court and other party has been given proper notice of the application;

c) where the recording includes the child concerned, the ascertainable wishes and feelings of the child;

d) whether any effort was made to secure agreement to the recording being made and if not, whether there was any reason why it would have been impracticable or inappropriate to do so;

e) whether there is anything arising from the circumstances in which the recording was made or any other relevant circumstance in the case which would give rise to the concern that the recording was made – not in furtherance of obtaining evidence that was relevant to an issue in the case, or other legitimate reasons such – but with the intention of controlling or intimidating behaviour or as part of a wider course of conduct of publicising material in a way that was inimical to the interests of the child/children concerned;

f) the substance of the matters which are contained on the recording;

g) to what issue in the proceedings it is asserted that the substance of the recording is relevant;

h) whether the court can be satisfied that the recording is a ‘complete’ recording of the meeting/interview/incident in question or whether there is a suggestion that the recording is in some way edited or otherwise taken out of context;

i) whether it is necessary to require the party seeking to adduce such evidence to enter into appropriate undertakings to ensure the restriction of any publication of the evidence.

AS ALWAYS IT IS IMPORTANT TO SEEK EXPERT LEGAL ADVICE IN SUCH A CONTROVERSIAL AREA.