Keep calm and stop recording

With recent advances in technology, there can be few family lawyers who have not been approached by clients with audio recordings that they say hold ‘key evidence’. But what should we do when the recordings are of children, and our clients want to use them in Children Act proceedings?

The message from two recent judgments is clear: proceed with extreme caution. In M v F (Covert Recording of Children) [2016] EWFC 29 Mr Justice Peter Jackson gave a robust judgment clearly highlighting the perils of such actions, for the litigants, child, and wider society.

In this case, the father and his new partner embarked on a comprehensive recording programme. It included sewing ‘bugs’ into the child’s school blazer before school – recording every detail of her school day – and the use of iPhones or other devices to record meetings with social workers and others involved in the case. The father sought to have the transcripts of what they believed was relevant admitted as evidence. The father asserted the child was not aware she had been recorded.

Jackson J permitted the recordings to be admitted as evidence, at the conclusion of which an order was made transferring the child’s home from that of her father to that of her mother. Jackson J concluded the mother was best placed to meet the child’s emotional needs, and the father’s covert operation clearly played a large part in the judge’s decision. In his judgment he made plain that concealing a device on a child for the purpose of gathering evidence is ‘almost always likely to be wrong’. Jackson J went on to consider the consequences of the father’s actions, which were wide reaching, including:

• Causing further damage to the relationship between the adults;

• Creating an issue of trust between the child and her father as/when she becomes aware of what had happened;

• Causing wider social issues for the whole family. Questions were clearly raised as to how the child/ family might be affected if their peers/ parents were to discover they/their children had inadvertently been recorded too; and

• Significantly increasing the cost of the proceedings.

Another useful example of the perils of covert recording can be found in C (A Child) [2015] EWCA Civ 1096. In this case the father alleged that the mother was violent and abusive. He installed CCTV in his home and used this to record the child as well as handovers and conversations between the parties. The mother alleged the father’s use of recording equipment evidenced his emotionally abusive behaviour. The court agreed and an order was made providing for the child to live with the mother and spend time with the father. It was noted on the face of that order that the father had agreed to stop photographing and recording the child and the mother.

The father appealed the order but, pending its outcome, an altercation took place between the parties at a handover which the father recorded. The mother obtained a non-molestation order as a result. The father produced the recording as ‘evidence’ that the mother was to blame.

On appeal of the child arrangements order the judge considered that the father’s asserted grounds of appeal served only to support the original judge’s view that he was unable or unwilling to focus on the child’s emotional well-being. The appeal of the non-molestation order was also dismissed. The father had failed to keep to the agreement not to record the mother or child and the Court of Appeal held that the act of recording itself, either covertly or overtly, was capable of attracting a non-molestation injunction in the right circumstances.

So what should we advise clients who wish to produce recorded evidence in children proceedings? It would seem that the following guidance can be drawn from the above cases:

• Exercise extreme caution. Jackson J’s closing comment in M v F that ‘anyone who is considering doing something similar should … first think carefully about the consequences’ is worthy of pause for thought;

• The court has the power under FPR 22 to control what evidence it admits. Clients should be aware that they run the risk of encountering all the negative by-products of having recorded their children, without even being able to rely on what information they have gathered. The lack of context available with audio recordings makes them particularly vulnerable to exclusion;

• Clients should consider carefully whether the act of recording their child covertly says more about them and their judgment than any ‘evidence’ they might gather. In M v F the judge noted that the manner in which the recordings were obtained was ‘directly relevant to an assessment of the parenting offered by the father’; and

• Clients who attempt to admit audio recordings as evidence not only run the risk of a costs order if it is established that their conduct has increased the cost of the litigation, but they may also run the risk of injunctive proceedings being brought against them.

We should be urging our clients to think carefully before making recordings of children with a view to gathering evidence, and even more carefully before seeking to have the recordings admitted within proceedings.

Mariko Wilson is an associate at Family Law in Partnership

@FLiPltd flip.co.uk