It is not uncommon for clients to come to us having carried out some sort of “evidence gathering”, such as recordings of conversations or filming of contact or handovers. This is unsurprising with the prevalence of smart phones with recording capabilities, and the availability of relatively cheap and sophisticated covert recording equipment, and tracking devices, and of course this can be very tempting.
Whilst relevant recordings can be admitted as evidence to the Court, at the Court’s discretion, parties should be aware of the potential pitfalls of making and seeking to use such recordings in Court proceedings. Peter Jackson J advised in the case of M v F (Covert Recording of Children)  that “such activities normally say more about the recorder than the recorded”, and it is worth bearing that advice in mind.
Case law on this issue is emerging, however, there is limited judicial guidance at present.
In Re C (A Child)  the father had covertly recorded handovers of the child, recorded the mother on CCTV in his home and taken photographs of the child during contact. The Judge found that a father had been deliberately provocative towards the mother in his frequent recording of handovers, as well as emotionally abusive towards both the mother and the child. The Judge considered that the use of recording equipment amounted to a form of intimidation, and was abusive and therefore capable of being the subject of an injunction.
In M v F (Covert Recording of Children)  a father (and his partner) hid covert recording equipment (including ‘bugs’ sewn into the child’s school uniform) on his child to record the child’s mother, as well as professionals such as social workers, family support workers and guardian. Recordings were often left running all day (including whilst the child was at school). The Judge considered that this case was a “striking example of the acute difficulties that can be caused by adults recording children for the purposes of litigation”, and was deeply concerned by the ramifications for the child’s welfare. In this case the Judge ultimately determined that the child should live with her mother as the father was unable to meet the child’s emotional needs. The recordings were not the only indicator of this, but it was a prominent one. He warned that “anyone who is considering doing something similar should first think carefully about the consequences”.
This issue has been raised most recently in Re B (A Child)  which concerned an 11-year-old girl. In that case the child’s father alleged deliberate alienation by the mother. He sought to rely on covert recordings made over a number of years, including of conversations with a social worker, Cafcass officer and a solicitor.
Sir James Munby, the President of the Family Division, has highlighted the increasing number of recordings, particularly covert recordings, being placed before the courts as evidence to support, or undermine, one party’s position in Court proceedings (including recordings of children, family members and professionals). He considers that this is an issue of growing significance, and a topic that needs to be deliberated, and judicial guidance produced.
- Recordings may be permissible in Court.
- Self help or “evidence gathering” by one parent against the other may be considered intimidating or provocative and viewed unfavourably by the Courts, and recording a child for this purpose may be viewed as emotionally abusive.
- The Court has the power to grant a non-molestation order to prevent such behaviour.
- In matters involving children recordings may be relevant to the child’s welfare or indeed may assist and be helpful to the Judge when looking at a matter in the round. However, obtaining such recordings must not in any way risk harm to the child, emotional or otherwise.
- A Judge may admit recordings into evidence, but this may ‘backfire’, as the Judge may consider that the recording says more about the recorder than the recorded.
- Judge’s will need to consider the lawfulness of the recording obtained, the admissibility of the recording in evidence and disputes over authenticity (is the recording bona fide, of the person in question and unedited?). Grappling with such issues in a Court process will inevitably increase legal costs through protracted and lengthy hearings.
We advise that, rather than recordings, clients keep contemporaneous notes of what a child has said (for example), or details of events of concern. If a concern is medical in nature then the child should be taken to a GP / relevant medical professions to be assessed and a letter or report prepared. Schools can be approached if parents need a third party’s input into how a child is presenting or behaving. Emails, texts, whatsapps, facebook, etc can also be useful.