The Family Justice Council guidance on covert recordings in Family Law proceedings concerning children

It has become increasingly common in family proceedings involving children for a party to seek to produce a covert/secret recording, made of another party, a child or professional e.g. a social worker. What to do in such a situation?

Helpfully, The Family Justice Council (FJC) has recently provided guidance (“the guidance”) on this issue which “explores the issues and examines the consequences arising from the use of covert recordings by private individuals” (1)

The guidance aims to provide clarity and consistency for professionals and litigants representing themselves, addressing the increasing use of covert recordings and their potential implications.

What is a covert recording?

“Covert recordings are any recordings made without the express knowledge and permission of the people being recorded whether by video or audio” [1.2].

In Re B (A Child) [2017] EWCA Civ 15 the Court of Appeal identified that there are at a least three categories of covert recording:

1. The covert recording of children;
2. The covert recording of professionals; and
3. The covert recording of other family members.

When a court is asked to determine any question with respect to the upbringing of a child, the welfare principle applies (s.1 Children Act 1989). In applying this to recording a child/ren, the guidance provides the following stark warning: the covert recording of children rarely promotes a child’s welfare whatever the intention [1.5].

The following guidance is provided to litigants wishing to record a professional “If you want to record professionals, it is better to ask their permission and ask to see any policy their organisation may have about recordings” [Appendix 4]

For a parent who has/is repeatedly covertly recording the other parent/carer, this may amount to a substantial invasion of privacy and such behaviour has been held by the court to be “highly relevant to the welfare determination” when assessing and determining arrangements for the child (Recorder Kainth [at para 26] in HKS v HSM [2021] EWHC 3423 (Fam)). [3.9]

Considerations for the court

Lawfulness: This article will not go into the issue of whether a covert recording could be deemed lawful within data protection legislation, but please see guidance on this issue at Section 2 of the guidance, and in very short summary:

• Recordings made after 25 May 2018 are subject to the UK GDPR:
• Some data processing is outside the scope of UK GDPR including data processed in the course of a purely personal or household activity (e.g. writing to friends and family or taking pictures for your own enjoyment) [2.6].
• However, “the ICO’s office has confirmed that if this data processed by family members is then used in a professional setting, such as in the home with a social worker present, then it would qualify under the scope of the UK GDPR” [2.6].

Admissibility: In all cases, the court must apply the overriding objective (FPR r.1.1) which enables the court to deal with cases justly, having regard to any welfare issues involved.

Covert recordings may be regarded as admissible hearsay evidence, which will require assessment by the court in terms of the weight which may attach to such evidence and what is said to be the probative value of the same. The court may use its power to exclude evidence that would otherwise be admissible (FPR r. 22.1(2)).

The guidance alerts readers to an interesting point of consideration when, for example, a child is being asked about specific allegations in contemplation of proceedings: “In the event the recordings are of a child, it may be necessary to consider whether the substance of the recording can be said to amount to an examination or assessment of the child” pursuant to s.13(3) of the Children and Families Act 2014 [4.13]. If this applies, the evidence would be deemed inadmissible until such time as the court rules it admissible.

Case management: If a party seeks to rely on a covert recording as hearsay evidence there should be consideration of making an on-notice application “to the other parties by way of an application using Form C2. As a minimum, the application should provide a summary of the following

• The nature of the recording – its context, whether it is edited, and the date(s) and time(s).
• The method of the recording and why it was obtained covertly.
• The relevance of the contents to the issues in the proceedings” [4.18].

Any such application should be made without delay, so as not to derail, delay or ambush any parties, particularly at or short before a final hearing.

Such an application is an issue of case management. “The court will need to provide directions which cover:

• The method of disclosure of the recordings to the other parties, including whether transcripts are required.
• Establishing the full scope of the recordings, how they came about, and which recordings fall to be considered.
• Establishing authenticity if in dispute, including any issues relating to editing.
• Establishing the probative value of the recordings to relevant issues in dispute.
• Consideration of implications for the welfare of the parties, and in particular the child if having been the subject of covert recordings.
• Consideration of costs arising from the application.
• Any further hearing to determine the issue of admissibility” [4.3].

As the guidance states “Before the Court engages in full consideration of the recording itself the Court should be satisfied that taken at its highest the content of the recording is relevant to the issues that require to be determined” [4.22].

There may of course be challenges relating to the quality, authenticity, and potential editing of the recording, which may require evidence to be heard from the party seeking to adduce the evidence.

Risks and Consequences

The act of making a covert recording of a child or another person involved in the case may have unintended adverse consequences for the party making that recording e.g.:

• The recording of a child may have evidential value to indicate the capability (or lack thereof) of the parent to understand and promote their child’s emotional needs and protect them from harm [3.12]
• It may be used as an example of distorted and obsessive thinking that can constitute a form of harassment, or be controlling or abusive [3.9].
• The introduction of covert recordings can result in a delay in proceedings, particularly if adduced late-stage, risking last minute adjournments and a delay in the resolution of the case and increased costs [4.20].
• There may be cost implications, including the cost of professional transcription, and even costs sanctions on parties who introduce covert recordings (see Section 6).
• There is a risk of civil actions, such as defamation (if used to demonstrate the truth of a particular allegation which is found to be unproven), or criminal charges, including harassment or coercive behaviour arising from the use of covert recordings (see Section 6).

Implications for Children

Covert recordings involving children raise specific concerns and may have adverse consequences for that child/ren e.g.:

• The court must assess how the nature of the recordings pertains to the child’s welfare. The act of recording, and its use within proceedings, may be deemed to cause emotional harm to the child/ren involved in proceedings.
• The child may require a children’s Guardian to represent their interests, especially if the recording/s impact their welfare [5.5].
• The court must decide whether the child should be informed about the recordings, and the risk of harm that may arise from the same [5.6].
• In some cases, the child may need to give evidence regarding the recordings. The court must balance the benefits of hearing the child’s evidence against the risk that doing so will cause emotional harm [5.7-5.10].

Conclusion

The Family Justice Council guidance underscores the complexities and potential risks associated with the use of covert recordings in family proceedings concerning children. While such recordings may occasionally offer evidential value, their use can lead to significant litigation, emotional, and cost consequences.

Saoirse Harris

Link: Covert recordings in Family Law proceedings concerning children: Family Justice Council Guidance. For a Summary of General Principles see Appendix 1, for guidelines relating to case management of intimate images see Appendix 3, and for litigants in person see Appendix 4.

[1] The guidance is not intended to consider the practice of public bodies (e.g. local authorities) nor commercial enterprises