With audio and visual recording devices more prevalent than ever, parties in family proceedings are increasingly turning to making secret recordings in a hope to capture ‘proof’ in support of their case. However, the use of such recordings in family proceedings raises several legal, ethical and evidentiary questions.
With audio and visual recording devices more prevalent than ever, parties in family proceedings are increasingly turning to making secret recordings in a hope to capture ‘proof’ in support of their case. However, the use of such recordings in family proceedings raises several legal, ethical and evidentiary questions.
To address these questions, the Family Justice Council published guidance in May of this year.
Definition as per Family Justice Council (FJC) Guidance 1.2:
“Covert recordings are recordings made without the express knowledge and permission of the people being recorded whether by video or audio. The sophistication and miniaturisation of modern recording equipment means it is relatively simple to record conversations on readily available and affordable devices without the knowledge of the person being recorded. In recent years, the court is increasingly being asked to consider such recordings as evidence within family proceedings.”
Admissibility
In family disputes, particularly those involving allegations of domestic abuse, dishonesty, or alienating behaviour, covert recordings can capture elements of speech that can’t be conferred in written language, such as a menacing tone, or loud and aggressive volume. “However, in some cases the recording is a form of surveillance that in itself can be an example off the distorted or obsessive thinking that can constitute a form of harassment or be controlling or abusive” (FJC para 3.9). Indeed, repeated covert recording of one parent by another has been held by the court to be “highly relevant to the welfare determination” when assessing arrangements for a child. A parent may be shooting themselves in the foot in an effort to gain an advantage in litigation.
The Court takes an even stricter approach to covert recordings of children, with Peter Jackson J (as he then was) noting that “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 all instances, CAFCASS family court advisers will not listen to or view covert recordings made by parents until the Court has determined whether it can be admitted into evidence. The admissibility of covert recordings is an issue to be focussed on in case management at the earliest possible stage. The Court will consider:
- The method of disclosure of the recordings to the other parties, including whether transcripts are required
- How the recordings came about, and which recordings fall to be considered
- The recording’s authenticity, including any issued relating to editing
- Establishing the probative value of the recordings to issues in dispute
- The welfare implications for the parties, particularly children
- The costs arising from the application
The Family Justice Council also indicate that covert recordings will be treated as hearsay evidence, meaning they may be admitted if relevant and reliable, but their weight will depend on the circumstances in which they were obtained.
Publication
Parties should be warned of the dangers of sharing covert recordings publicly. Not only could this constitute a breach of data protection law, but it could also be defamatory if the allegation the recording intended to prove was found to be false. The increased chance of a child being identified through the recordings being circulated on social media further demonstrates that the risks involved in publication of covert recordings are very serious.
Conclusion
Whilst covert recordings can appear to be a powerful tool within family proceedings, it is in reality, a double-edged sword that can have serious adverse implications for everyone involved in proceedings. You need to consider whether doing so would undermine trust, breach confidence, and, in the process, compromise your own case. If you are thinking about recording anyone in the context of a family dispute you should seek independent legal advice.
Further implications detailed in the guidance include:
- Increased costs
- Satellite litigation
- Increased risk of injunctive proceedings and criminal exposure relating to harassment
- Risk of compromising the prospect of any prosecution or judgment in the family court
You can find the FJC’s guidance by clicking the link below.