By Vanessa Lloyd Platt
Over the last few years, matrimonial solicitors are forever being confronted with clients clutching the tape recordings or video recordings which they can hand over to their lawyers believing that this is important for their case. For most lawyers, the legal position is not clear as to whether covert recordings made by one party against the other will be admissible.
In December 2022 the Family Justice Council issued a draft guidance, particularly discussing the issue of such recordings within private law children matters. With technology becoming ever more user friendly, many clients can easily record their partner in many different settings, therefore the issue of how these recordings can or should be used as evidence in Court proceedings is becoming increasingly relevant.
In the case of M v F [covert recording of children] [2006 EWF C29] Sir Justice Peter Jackson said “Nowadays it is all too easy for individuals to record other people without their knowledge and advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies”.
As has been pointed out by a recent article in Family Law – whilst on the one hand covert recordings can assist the Court in getting to the bottom of the classic “he said – she said” argument, on the other hand covert recordings often represent a snapshot of a brief moment in time that can be unrepresentative of the wider context in which that recording was taken. It therefore can be easy to misinterpret, edit or encourage the other party to explode at various times and that might be the item that comes to the attention of the Court.
As has been pointed out iCameras can be subtly hidden in the family home and iWare can be downloaded onto the other party’s phone that can be listened into and record conversations. There are cases where people track the family car or the movements of their spouse. Everyone is aware that Data Protection Rules and Human Rights Act govern every individual’s respect for privacy in family life. However, in family cases this appears to be dealt with differently. When these recordings are used in private Court proceedings, breaches of those Acts are unlikely.
There is no one rule relating to whether the Court will allow covert recordings. The Judge will have to consider whether there is a full transcript of it and whether it will assist the Court.
The most important principles are:
- Is the recording necessary for the Court to consider? Does the recording or video go to the heart of the welfare checklist in terms of parents’ capability and issues to do with harm or credibility?
- Does the recording accurately reflect what is going on during the event? Has the other party unfairly steered the conversation to their advantage?
- How was the recording taken? In a case known as M & F, the Courts take a very strict approach to admitting any covert recordings that have been obtained through the manipulation or exploitation of a child. In M & F, a recording device was placed on a child for gathering evidence, the Court stated it will almost likely be wrong for that to be allowed.
- Why was the recording undertaken? It is very important to understand that if there are a lot of recordings that this may have an adverse impact. Instead of assisting the person who has made those recordings, it can be said to be part of a wider pattern of coercive and controlling behaviour. In a case known as Re C – A Child, those kinds of recordings backfired on the father where it was stated that the Court was entitled to conclude that the use of recording equipment and that the context of the case amounts to a form of intimidation and abuse. Care must be taken therefore in simply using the tapes in any case that the Court can draw adverse conclusions.
- Breach of Trust? Taking a recording of someone without their prior knowledge or consent is a breach of trust and this was found in a case called Re A – A Child where covertly recording a child will be problematic. If parties store, albeit on cameras or devices to film a child for their own purposes this will be particularly scorned upon.
- Have appropriate steps been taken by the Court regarding the tapes or videos? The Court must be clear if only part of the full recordings are produced, and that the full recordings are looked at by the other party to see that they haven’t been cut down or misinterpreted.
The draft guidance confirms that the recordings must not be listened to by third parties until the Court has determined whether that recording should be admitted in evidence. It is a case management decision for the Court to consider the method of disclosing the recordings; the identification of the scope of the recordings; the authenticity of recordings to establish the probative value of the recording; welfare consideration for the children and the cost.
If you believe that your recording shows a genuine welfare concern, then discuss it with your solicitor before using it in evidence. As can be seen from all the cases, using such videos and tapescould be a double-edged sword.
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