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It is now the case that practitioners are frequently seeing covert recordings arise in the context of family proceedings which involve the recording of family members, children and professionals. This may be a result of what is perceived to be a growing mindset of distrust in the competency of the family justice system and professionals working within it or because individuals are simply hoping to bolster their case with the footage they have obtained.Article continues below...
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What then should solicitors be advising clients who have carried out such recordings?
The President of the Family Division, Sir James Munby, has stressed the need for guidance in his recent judgment in Re B (a child)  EWCA Civ 1579. A father had sought to rely on a number of covert recordings he had taken over a number of years of conversations with a social worker, Cafcass officer and solicitor. The circuit judge at first instance permitted the father to rely on these recordings and accepted them as relevant to the issues at hand. He also invited interested bodies to make written submissions on the topic of covert recordings and conversations with practitioners. The judge then purported to provide guidance on this topic. The father appealed on two grounds, namely that the judge’s treatment of the recordings demonstrated bias and secondly the order that the judgment be published.
In relation to the first ground, King LJ dismissed this when dealing with the permission application as it was concluded that the judge’s analysis could not be criticised. The focus of this permission hearing was therefore on whether or not the judgment should be published. It was decided that it shouldn’t. The judge should not have attempted to provide guidance on this matter, it went beyond the scope of his role and the guidance provided was too sweeping. The father was therefore given permission to appeal to the extent of setting aside the relevant part of the judge’s order and in its place directing that the judgment shall not be made publically available.
The President identifies in his judgment the issues that inevitably arise when attempting to introduce recordings into evidence including the lawfulness of obtaining the covert recordings in the first place, best practice outside of the court, admissibility and other evidential and practical issues (such as verifying the authenticity ofrecordings). In paragraph 16, this concern is evident:
'[C]overt recording in the context of family courts potentially involves a myriad of issues, very few of which, despite all the judgments to which I have referred, have, even now, been systematically considered at either first instance or in this court'.
The nature of the recording and who is being recorded (a child, family member or professional) has to also be addressed.
This is not the first or the last case that will raise such issues. In M v F (Covert Recording of Children)  EWFC 29, a father sewed a recording device into his daughters school uniform to record conversations she was having with various bodies about who she should be living with. The recordings were admitted as evidence on the basis that they were directly relevant to the assessment of the father to parent the child. Mr Justice Peter Jackson (as he then was) stressed that experience suggests that such activities normally say more about the person carrying out the recording than the person being recorded. The judge came to the decision that the child should live with the mother (with the recordings playing a part in the decision). The court also made a cost order against the father for the mother’s costs associated with the time taken up with the recordings. In C (A Child)  EWCA Civ 1096, a mother was granted a non-molestation order as the covert recordings carried out by the father amounted to intimidation. These are just two examples but they demonstrate the consequences a client could face when using recordings as evidence. It suggests that warnings should be given by solicitors about the possible negative impacts that such action could have upon a case.
The President does highlight some examples where covert recordings have been both accepted and decisive in a hearing and have not shed the recorder in a negative light.
It is not conclusive that recordings will always have a negative impact; much will depend on the content of the recordings, who is being recorded (advice will certainly be different if it is a child being recorded rather than a professional), the surrounding circumstances and whether the recordings amount to a breach of confidentiality. If there is a risk that covert recordings breach confidentiality, then strict advice against it is likely to be needed (similar to advice given to clients who help themselves totheir partner’s financial documents in financial proceedings).
The Family Justice Council has been invited to produce guidance on this topic. In the interim, until this guidance is provided, it appears that clients should be advised to be cautious if they pursue this route. They run the risk of it not only reflecting badly on their character, but also the potential of an adverse order (including a cost order) being made against them.