By Tracey Cook

Solicitor

With the advances in mobile phone technology and the ease of obtaining recording devices, there has been a significant increase in the use of covert recordings, as a means of obtaining evidence to be used in family proceedings. This includes the recording of children and the other parent. With such an increase, the need for guidance in the family courts as to the lawfulness and admissibility of such recordings has been highlighted.

What are covert recordings and are they legal?

Covert recordings are ‘recordings made without the express knowledge and permission of the people being recorded, whether by video or audio’.

All recordings that are made after 25 May 2018 are subject to the provisions of the GDPR and data protection law. Whilst personal data processed in the course of a purely personal or household activity is usually considered exempt, covert recordings of individuals and particularly children, for the purpose of evidence-gathering in family proceedings are unlikely to benefit from the domestic purposes exemption.

The making of such recordings may also be considered to constitute a form of harassment, which may be used as an example of controlling or abusive behaviour in an injunctive application for protection from harassment and/or a non -molestation order.

Will the recordings benefit my case?

Whilst many parents may believe that the recording will provide significant evidence to support their case, the implications of such an invasion of privacy on the welfare of the child must be considered by the court and may be highly relevant when a court is assessing and determining the arrangements for the child.

In a recent case, it was held that the recording did not in fact assist the court and in fact highlighted the further damage caused to the relationship between the parents, and the child’s relationship with the recording parent in the future.

Mr Justice Jackson went on to say that ‘it is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings’.

Cost consequences

In addition to the detrimental effect on the child’s wellbeing, and perhaps the case itself, there are significant costs implications with submitting covert recordings family proceedings.

Before a covert recording can be admitted as evidence, it is necessary for the court to consider the admissibility and weight attached to the covert recording itself. This will likely require a case management hearing and will result in significant extra costs being incurred. The recording parent may be ordered to pay these costs.

In addition, the court may also consider imposing costs sanctions against the recording parent, even though the recording itself may not affect the outcome of the case and may in fact lead to a detrimental conclusion in respect of their ability to consider the child’s emotional wellbeing.

Further risks

In cases where a parent is attempting to gain evidence of criminal behaviour or abuse, it is essential for investigations to be undertaken in accordance with strict guidelines for the interviewing of children by trained professionals in a controlled environment.

If interviews are not conducted in accordance with those guidelines, the credibility of the evidence may be seriously undermined. A parent who attempts to covertly gain evidence of any suspected criminal or abusive behaviour, may seriously compromise any future investigation.

In conclusion

The draft guidance produced by the Family Justice Council goes some way to addressing the rising issue of covert recordings being undertaken in family proceedings, without the recording parent having a clear appreciation of the impact that such recordings may have on the proceedings themselves and how those actions may in fact detrimentally impact the position they seek to prove.

For further advice in successfully managing family proceedings, please contact our family team who will be able to assist you further.