The age of covert recordings

The topic of covert recordings and their admissibility as evidence in children’s proceedings has been a growing concern for the family courts for some time now.

Technological advancements have made it very easy for anyone to be recorded at any time without their knowledge. The lockdowns caused by the national pandemic have only exasperated that issue with recordings becoming even more common with WhatsApp video, Zoom calls, video doorbells, home camera systems, pet cams and so on.

You only have to turn on the news this week to see live feeds of the defamation trial in the US between Johnny Depp and Amber Heard where there is an abundance of covert recordings being discussed daily.

Why do people covertly record?
In children’s proceedings, parents have long sought to record family court advisers (Cafcass officers), social workers and medical professionals for a myriad of reasons, whether it be to make a record of what was said due to the volume and complexity of information or whether it be due to a lack of trust between the individuals.

It must be said that there have been occasions where professionals have not been as clear as they could have been with several published cases highlighting failings by professionals, one of which is Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149 (Fam) whereby inaccurate quoting in a report purported to suggest an individual had quoted something when they had not. I have come across several cases recently where professionals are not clear in their communication which can give rise to misunderstandings, only serving to justify the validity of those covert recordings where they have existed.

Why do we need to be careful when covert recording?
The above being said, the starting point when considering introducing covert recordings in evidence is always to be extremely cautious. There will be immediate questions about why the recording was made, did the party being recorded know they were being recorded, and did they give their consent? In truth, the main concern for the court in this age will be cases involving the recording of children.

In 2016 Peter Jackson J stated in 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, whether or not the child is aware of its presence. This should hardly need saying but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or tablet to make recordings that would be the envy of yesterday’s spies.”

In Re C [2015] EWCA Civ 1096, Richards, King and MacFarlane LJ found that the father had acknowledged he had recorded the child and the mother, had agreed not to continue doing so but not abided by that agreement and had subsequently edited the recordings which were produced to the court. The court took the opportunity to make clear that recordings can be considered as a form of abuse and the argument of it being covert and therefore unknown to those being recorded with them therefore not suffering any harm, not to be a sufficient excuse.

The views of children’s services, such as Cafcass and National Youth Advocacy Service is that where recordings are being made to gather evidence, there is a temptation to lose sight of the child’s welfare and often parties find themselves inciting and prolonging arguments with a view to producing that recording in court. Of course, the recorder knows they are being recorded and is unlikely to act provocatively during the argument whereas the recorded party is likely to act in an unguarded way.

Either way, the preference of professionals would be to ensure no harm is perpetrated and certainly that children are not exposed to any violence, or domestic abuse which includes verbal arguments, shouting and hostility from one parent to another.

What is the relevant approach to covert recordings?
The important question is how you argue that the covert recordings are admissible or not. Re B (A child) [2017] EWCA Civ 1579 sets out the following:

Whatever the nature of the recording, a number of issues are likely to arise including:

• The lawfulness of what has been done.
• The best practice outside the court room.
• The admissibility of the recording in evidence.
• A variety of other evidential and practical issues (including sound and picture quality, authenticity, identifying individuals in the recordings, editing and transcripts).

There is a tendency to overcomplicate matters but to simplify, in my experience, if the recording is relevant, i.e it proves or disproves an allegation, it will be allowed into evidence.

You will however need to be prepared to address the following:

• What is the relevance of the recording and why does the court NEED to hear/see it?
• Has it been disclosed to the other side?
• What is the context of the recording, who was it made by, when was it made, on what type of device and why was it made?
• Is the file edited or available as a full recording; is there a transcript available?

In terms of good practice, the lawyer should always have a transcript produced of the full recording (to avoid disputes over context). You should file and serve it on the other side at the earliest opportunity and you should have a discussion with them if there are any concerns around admissibility so you can take steps to invite the court to make a preliminary determination if necessary.

For more information

If you would like to discuss covert recordings or children’s proceedings, please contact Matthew Saunderson or a member of the family law team.

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