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Covert Recordings in Family Proceedings – the Guidance

 

  1. ‘Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday's spies’ (Peter Jackson J M v F (Covert Recording of Children) [2016] EWFC 29).
  1. In recent years, the family court is increasingly being asked to consider covert recordings as evidence within proceedings. What do I mean by ‘covert recordings’? Any recordings made without the express knowledge and permission of the people being recorded, whether the recording is by video or audio. In family proceedings, this is often recordings of the other parent, the child(ren) or professionals such as social workers and Cafcass Officers.
  1. The Family Justice Council (FJC) has now published guidance (the “guidance”) for professionals and litigants on the use of covert recordings in family law proceedings. Appended to the guidance is further helpful information including a summary of the guidance for litigants and also guidance relating to case management of intimate images.
  1. The guidance sets out that the court will be required to engage in focussed case management before the admissibility of a covert recording, and its probative value, can be established. Issues relating to covert recordings should be identified at the earliest opportunity. Directions made by the court will need to cover:
    1. The method of disclosure of the recordings to the other parties, including whether transcripts are required.
    2. Establishing the full scope of the recordings, how they came about, and which recordings fall to be considered.
    3. Establishing authenticity if in dispute, including any issues relating to editing.
    4. Establishing the probative value of the recordings to relevant issues in dispute.
    5. Consideration of implications for the welfare of the parties, and in particular the child if having been the subject of covert recordings.
    6. Consideration of costs arising from the application.
    7. Any further hearing to determine the issue of admissibility.
  1. When considering admissibility, the guidance details that almost all covert recordings will be hearsay evidence and for that hearsay to fall within the parameters of the Children (Admissibility of Hearsay Evidence) Order 1993 (SI 1993/621) - and so fall outside any other rule of law relating to hearsay such as the Civil Evidence Act 1995 (CEA) - it must be ‘evidence given in connection with the upbringing, maintenance or welfare of a child’. That determination will be fact and case specific and should be determined by the court.
  2. Ultimately, it is essential that the court is provided with the details necessary to carry out a proper determination of the factors relevant to the consideration of whether covert recordings should be admitted into evidence, and the weight to be given to covert recordings as hearsay evidence.
  1. As a helpful reminder, the effect of the 1993 Order in family proceedings relating to children is that the rule against hearsay does not apply, meaning a party to such proceedings no longer has a right to challenge the admissibility of evidence connected with a child on the ground that it is hearsay so long as it falls within the parameters of the 1993 Order (which in most cases of covert recording will be likely). Nonetheless, the court will need to assess the weight to be attached to such evidence: as per Lady Justice Butler-Sloss in R v B County Council ex parte P [1991] 1 FLR 470 (CA), ‘a court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon.’
  1. When the court considers the admissibility of covert recordings, it shall of course also consider FPR 2010 rule 22.1(1), 22.1(2) and 22.1(3).
  1. It may be necessary to consider whether the substance of a covert recording can be said to amount to an examination or assessment of the child, per section 13(3) of the Children and Families Act 2014.
  1. If the court considers that a particular covert recording falls outside the provisions of the 1993 Order, section 2 of the CEA states that a party relying on hearsay evidence should give notice and, if asked, particulars. In those circumstances, FPR 2010 rule 23 provides for applications to be made for the covert recording(s) to be determined as admissible evidence as soon as is practicable. Such application should be made on notice using Form C2 detailing as follows:
    1. The nature of the recording – its context, whether it is edited, and the date(s) and time(s).
    2. The method of the recording and why it was obtained covertly.
    3. The relevance of the contents to the issues in the proceedings.
  1. The court will need to consider directions necessary to determine whether the recording should be admitted and the issues relevant to any weight to be given to it and ensure that this is a proportionate exercise. The relevance and probative value of the recordings will be key here.
  1. In terms of ‘relevance’, the court should be satisfied that taken at its highest the content of the covert recording is relevant to the issues that require to be determined. For the test when deciding ‘relevance’, the guidance reminds us of the House of Lords decision by Lord Simon of Glaisdale in Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440, [at paragraph 460J]:

‘Your Lordships have been concerned with four concepts in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant… Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.’

  1. Even if key content of a covert recording is not probative of an issue in a case involving children, then the fact of the making of the recording may still be relevant in so far as it relates to the conduct of the person who engaged in covert recording, and implications for the welfare and relationships of those recorded.
  1. Where the content of a covert recording is likely to be relevant, the guidance suggests the court should continue to consider the factors below:
    1. Probative value.
    2. The authenticity and completeness of the recording (in some cases the instruction of a forensic expert may be necessary and proportionate)
    3. Scope of the recording(s) to be admitted into evidence.
    4. Admissibility as it relates to the manner in which the recording was obtained (including whether the recording was legally obtained).
  1. When looking at the considerations relating to the covert recording of children, the guidance makes clear that irrespective of whether the recordings can be relied on, as evidence of fact, the court must consider the degree to which the nature of the recordings is pertinent to the welfare analysis of the child. The guidance reminds us of Re C (A Child) [2015] EWCA Civ 1096 where the court noted covert recordings have been used to attack the other parent:

‘[The father] is quite unable to understand that his frequent recording and photographing of [the child] is emotionally abusive of her. As [the child] grows up, what is she to make of it? She will know, if she does not already, that [the father] is looking all the time for the means to criticise [the mother].

  1. The guidance goes on to suggest that the court may need to consider the appointment of a Children’s Guardian, whether the child’s welfare requires them to be informed they have been the subject of a covert recording and whether the child may be required to give evidence to evaluate the weight to be attached to the content of the recording.
  1. The possible consequences and issues arising from covert recordings are considered within the guidance. Costs is of one of the more obvious consequences but the guidance also lists civil actions, injunctive proceedings and harassment. Another consequence is the risk of compromising the prospects of any potential prosecution or judgment in the family court. This can be situations whereby parents may record a child talking about matters which they believe to be evidence of abuse – it happens often in family proceedings especially where a parent seeks to gather evidence in support of a particular allegation against the other parent. The guidance makes clear that it is essential for the credibility of the ‘interview’ that interviews of this nature are conducted in a controlled environment under the supervision of appropriately qualified professionals. If they’re not, the court may attach no weight to what the child has said.
  1. I would encourage all to read the guidance in full however, Appendix 1 to the guidance helpfully summarises the general principles.