The use of covert recordings in family proceedings has recently been highlighted after the President of the Family Division, Sir James Munby, warned that this has become a topic of "growing significance".
It seems that desperate parties are going to increasingly greater lengths to produce evidence that could sway a case in their favour, where a judge's decision would usually come down to the word of one against the other (albeit guided by recommendations of a Cafcass officer in children cases).
The President has invited the Family Justice Council to consider the issue of covert recordings following a recent case where a father had made recordings of conversations with a social worker, Cafcass officer and solicitor over a number of years (Re B (A Child)  EWCA Civ 1579).
Recording equipment is easily available in the age of smartphones and new technology. Purchasing equipment such as recording software and tracking devices is easy and cheap. Voicemail messages can be saved and telephone calls can be easily recorded.
At present, there is very little guidance as to the use of covert recordings in the family court, despite this becoming an increasingly prevalent issue, given the easy-to-access technology. It is often difficult to advise clients in this position as to how the court will treat such evidence, in the absence of clear guidance from the court.
Recordings can be used as evidence in family proceedings, if permission is given. However the court can decide to exclude it, but must give clear reasons for their decision, if so. Such recordings should not be shown to third parties (eg Cafcass or a social worker) until permission has been given by the court. In cases where this is an issue, the judge will have to be satisfied that the evidence is unedited, relevant to the proceedings and the voices are definitely those of the people claimed.
An extreme example of this was highlighted in a case last year, where a father had gone to the extreme lengths of sewing recording devices into his child's clothing (M v F (Covert Recording of Children)  EWFC 29).
The decision for the court was whether the child should remain living with his father and her partner, or whether she should live with her mother instead. The father and his partner were desperate to find out what the child was saying to the various professionals involved and used selected excerpts of the recordings within the proceedings.
The court admitted the recordings as evidence within the case, and noted the relevance of the way the recordings were made to an assessment of the father's parenting. Jackson J felt it was unreal to exclude the recordings, knowing they existed and there was a risk excluding the content of the recordings, but using the fact the recordings were taken, would lead to unbalanced evidence.
The judge said concealing a recording device on a child to gather evidence for proceedings "is almost always likely to be wrong" and that the actions of the father and his partner were detrimental, for the following reasons:
The judge warned that anyone considering doing something similar should "first think carefully about the consequences".
The judge in that particular case did not go so far as to address any potential criminal aspects of the steps taken by the father and his partner (eg a breach of the Data Protection Act 1998 or the Human Rights Act), or comment on what the position would be in relation to recording of adults, but it serves as a warning that the court will not look too kindly on covert recordings being submitted as evidence.
In every case, it is important to consider the appropriate evidence to be used and the benefits, in light of the circumstances of the case and the desired outcome.
Advising in relation to recordings (of both children and adults) is becoming increasingly common in our family cases. For further advice about the right approach to take in your circumstances, please contact Sarah Green, Associate in the Family team.This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.