Family lawyers welcome new guidance on covert recordings

Technology advances quickly, and the use of recording devices, especially on phones, has become more commonplace. 

The Family justice system is grappling with this issue, as parents sometimes covertly record the other parent, their children or even professionals who are involved with the court case, imagining that it will be helpful evidence in their case. 

In response to this, the Family Justice Council (FJC) has recently released this guidance for those involved in Family proceedings, which highlights the key concerns around recordings, highlighting the impact which the recordings may have on the child, as well as providing clarity on how the recordings will be managed by the court.

Why are parents covertly recording? 

The guidance explores why parents might make secret recordings. Here are some of the reasons: 

• Recording the other parent as ‘proof’ of the pattern of behaviour they have complained about. 
• Mistrust of the professionals who are involved or wanting to gather evidence quickly.  
• Recording their child in the belief that the recording will provide significant evidence which they can use in the court process. 

Impact on the child and what young people think

Secretly recording a child raises major privacy and trust concerns, and this is highlighted in the new guidance. The very fact that the parent has ‘bugged’ a child can reflect poorly on the parent, leading to questions about how well that parent can understand and promote their child’s emotional needs and safeguard them. 

We are given some really insightful views from young people, who were concerned about the negative and harmful impact that covert recordings could have on them. They described that they would likely feel betrayal and discomfort if they had been secretly recorded. This provides an important reminder that the child’s needs should be the priority in any dispute. Just because a parent can make a recording, it doesn’t mean that they should, or that it will even be helpful to their case.

Case Management and Admissibility

The court needs to carefully manage decisions around covert recordings, providing ‘directions’ (which are instructions) which deal with, for example: 

• how the recordings should be disclosed to other parties
• establishing authenticity if that’s in dispute (e.g. has the recording been selectively edited by the person who made it?) 
• establishing whether the recordings are relevant to the dispute. 

The court will also consider the emotional and psychological harm which may be caused to the parties, especially where there are allegations of abuse.

A key question is whether the recordings are actually relevant to welfare decisions which are being made, and if they are going to be helpful to the judge who is dealing with the case. 

Cost and delay 

Dealing with issues like covert recordings inevitably means that Family cases take longer to resolve and cost parents more money. Not only will it take up more court time as the court needs to consider whether the recordings are admissible as evidence, but there will be additional costs such as paying for transcriptions of recordings. 

Parents should be aware that the court can penalise a party by making them pay for the additional costs in some cases. There may also be unintended consequences which flow from making the recordings which they hadn’t considered. For example, in some cases there may be an option for a parent who has been recorded to sue the recording parent for wrongly obtaining evidence, or perhaps the recording could be used against them as evidence of coercive or controlling behaviour.

Publication of covert recordings 

There are strict rules around publishing evidence which has been produced for the purpose of court proceedings, and specific rules around what documents or evidence can be distributed in connection with children proceedings. Parents who are tempted to share recordings on social media or online forums may find that they fall foul of the law, and should therefore be extremely cautious. 

The guidance puts this point very eloquently: Irrespective of the legality, the publication of covert recordings either to other individuals or on social media can have profound consequences for the individuals involved, which go beyond a simple desire for transparency. The risks of doing so, and the possible impact on the child or others, should be considered prior to publication. Those seeking to publish should be aware that their conduct in doing so may be considered as part of any evaluation of their conduct in proceedings and may be a contempt of court.

Final thoughts 

This new guidance is very welcome, and is an excellent tool to use when secret recordings are an issue. It reminds us of the potential dangers of covertly recording, and why it may create more problems than it solves. There is an excellent summary at the end specifically designed for parents, which I’d recommend all parents who are involved in family court disputes to read.