Conclusive truth or abusive sleuth - can covert recordings be used in family law proceedings?
Background and introduction
Behind closed doors, witnesses are often in scant supply. Family law cases are among the most emotive proceedings to litigate.With such high stakes, a sense that justice is being meted out on the balancing of ‘he said/she said’ arguments and with a potential recording device in everybody’s pocket, it is easy to understand the huge increase in requests to admit covert recordings into evidence in family law proceedings. On the positive side, such recordings can illuminate the truth, but they can also invade privacy and undermine trust so they are a potential strategic tool, but not without significant ethical concerns.
Almost exactly three years ago, inspired by the private sleuthing of Coleen Rooney in the context of the “Wagatha Christie” case, my colleague Joshua Green examined the approach of the family courts to covert evidence: Wagatha Christie – lessons in covert evidence gathering for separating couples in conclusion, Josh noted the clear need for further guidance which has finally now arrived from the Family Justice Council. So too the President of the Family Division recognised in his Foreword how the courts have had to grapple with this growing area with little such guidance available. His hope is that the publication of guidance will help lead to greater consistency of approach, balancing what clearly has potential evidential value with privacy and respect for parents, children and professionals as well as addressing concerns about accuracy.
What is plain from the guidance is that it should not be viewed as encouragement to record by offering a step-by-step instruction guide of how to successfully ensure your recording will be admitted in evidence. On the contrary, it contains repeated reminders that covert recording of court hearings constitutes contempt of court; that secret recording may undermine the validity of expert assessments; and that the evidential value of covert recordings of children may be limited to reflecting poor on the parent who made the recording. It is clearly signalled that the very existence of covert recordings may raise conduct concerns and be seen as a form of intimidation or harassment, exacerbated if there are issues of wider publication, and the potential for injunctive relief is also touched on. In this context the quote in Josh’s article from the Judgment in M v F (covert recording of children) [2016] EWFC 29 merits repeating: “Experience suggests that such activities normally say more about the recorder than the recorded” – particularly true in the instant case where the father went as far as to sew recording devices into the child’s clothing.
However, there are some situations where covert recordings may prove helpful – where their evidential value is high and weighs heavier in the balance than privacy concerns - and in such circumstances the guidance aims to promote consistent good practice.
The nitty gritty
Perhaps unsurprisingly given the complexity of the issues and the wide variety of situations it covers, in many ways the guidance raises more questions than it answers but it does at least provide a framework that helps ask the right questions. That framework covers the following points:
Was the recording lawful?
The guidance draws a distinction between the implications of covert recording of professionals and of private individuals, including children. It also references the potential GDPR concerns that might arise in the context of making, retaining or distributing a recording that includes personal data. Understanding the motivation for making the recording may clarify whether it is included or exempt from GDPR. Generally speaking, data processed during purely personal activities will not be subject to GDPR, but if that data is then shared with another person or professional body (e.g. a social worker), it would be caught by GDPR. The guidance recognises the prevalence of such recordings and invites further guidance from the Information Commissioner’s Office.
Covert recording of court proceedings is never lawful.
Who made the recording and why?
Recordings of professionals - If there is a desire to record a professional, e.g. a parent’s meeting with a CAFCASS officer, the guidance generally promotes transparency, both in terms of asking openly for permission to record and granting such permission. It is noted that professional bodies should have policies on overt and covert recordings (see further section 5 below). However, in some cases recordings, by agreement or otherwise, might undermine the validity of expert assessments e.g. for neuropsychological assessments where it is considered to influence the interaction.
Recordings by parents of each other – Tread carefully here! As will be seen in the sections that follow, there is certainly no guarantee that any such recordings will be admitted in evidence (see section 4 below) and there are potentially quite significant risks of costs orders being made against the person seeking to have such evidence admitted or even criminal sanctions for having made the recording in the first place (see section 5 below).
Recordings of children – Tread even more carefully here! This applies whether the recording is covert or overt. The potential utility of a recording is likely to be extremely limited, so there is little to weigh in the balance on the positive side of the scale against the very serious welfare concerns arising from such a significant breach of trust and invasion of privacy on the negative side of the scale.
Best practice outside the court room
In circumstances where individuals try to provide professionals with covert recordings to read or listen to, extreme care is advised before doing so. Professionals are advised to take legal advice first and to consider its authenticity and the purpose of sharing it.
If there are proceedings, this should be considered as a case management issue and Cafcass take that approach already before reviewing any such recordings.
The admissibility of the recording in evidence.
When one party wishes to adduce such recordings as evidence, the guidance promotes careful case management at the earliest stage. Although the guidance sounds warnings about costs and delay caused by satellite litigation and includes a reminder of the court’s overriding objective, there is encouragement to the court to make early directions about various aspects including:
- The method of disclosure and whether transcripts are required;
- Establishing the full scope of the recordings and how they came about;
- Whether there are any doubts as to authenticity or editing concerns;
- Considering the probative value of the recordings relevant to the issues in dispute;
- The welfare implications for the parties and the children;
- Costs
- Whether a further hearing is required to determine admissibility.
In a case management context, the full guidelines from Re M [2022] EWHC 986 (Fam) are reproduced as an appendix to provide specific guidance in cases where the covert material involves intimate images.
The Family Procedure Rules do theoretically allow for covert recordings to be admissible as hearsay evidence. However, where appropriate, the rules also provide for the control and exclusion of evidence that would otherwise have been admissible or, conversely, for evidence to be adduced even where a party has failed to comply with procedural requirements. When making such decisions there are various considerations that must be looked at and these need particularly careful application where the recording is of a child. The court’s job will be to consider its admissibility and how much weight to attribute to it. This will be highly fact specific, but useful factors to consider include whether the same information could have been provided by the subject of the covert recording as a witness or whether it was an edited account, or made in collaboration with another or for a particular purpose.
Process – Generally an early application should be made in form C2 summarising the nature of the recording (date, time, context, edits etc.), the method of recording, why it was done covertly and the relevance to the issues in the proceedings.
Relevance – The recording must be relevant in the sense of being “…logically probative or disprobative of some matter which requires prove.”
Probative value – Where a recording may be relevant, the court should continue its enquiries to consider its probative value. It should be remembered that the person making the covert recording may have an advantage by adjusting their behaviour accordingly and/or manipulating the situation to extract something out of context. Further evidence about interpretation and weight may still be needed even if it is admitted in evidence.
Authenticity and completeness – This is an increasingly important consideration given the AI revolution and ease of digital manipulation. If authenticity cannot be established, a recording should not be admitted. Full, preserved, unedited recordings are preferable and an independent transcript may be required. If authenticity is challenged an SJE may be required to produce a report including analysis of metadata, file formats, time stamps, background noise, voice texture etc.
Scope – Where there are many or long recordings it will be necessary to consider whether all are relevant and whether a recording can be edited.
Admissibility as it relates to the manner in which the recording was obtained – This is a further factor to consider, although there is no automatic bar simply because the recording was obtained improperly or even illegally.
Helpfully, Appendix 4 to the guidance is a document addressed specifically to litigants themselves, primarily aimed at litigants in person, and it provides a jargon free, straightforward summary of the main issues and the court’s approach which is likely to prove very helpful for practitioners to direct clients attention to.
Other issues arising in connection with covert recordings.
Recordings of children - The guidance includes a specific section on issues that arise where covert recordings have been made of children. These include:
- The potential need for the child to be separately represented and the appointment of a guardian given the importance of the issues in question and to assist with the welfare evaluation;
- Consideration of whether and how the child should be told they are the subject of a covert recording given that withholding the fact and delay may cause greater damage if it subsequently comes to light in an uncontrolled way; and
- The possibility of the child giving evidence to help evaluate the weight to attach to a covert recording which would require a separate application on Form C2 and the appointment of a guardian.
Risks – costs, civil and criminal proceedings – Where covert recordings have been made the guidance sounds an alarm about the potential for: adverse costs orders to penalise a party producing the recording to deter improper conduct, or for associated civil action where evidence has been obtained improperly or for breaches of GDPR. Even more seriously, the fact of having made such recordings may also lead to injunctive proceedings or criminal proceedings for harassment.
The risk of compromising evidence from children - Specifically, there are strict rules about interviewing children to obtain best evidence where there are concerns of criminal behaviour or abuse. It is important for specially trained professionals to conduct interviews carefully in a controlled environment, so the guidance also sounds a firm word of warning to any parent who tries to address that themselves and thereby risks compromising an investigation.
Publication - Even where the original covert recording may have been lawful, its subsequent publication – or threat thereof – may present other challenges for the courts and the parties including breaches of confidentiality, privacy and GDPR, or potential defamation, harassment or harm to children.
Overt recording agreements - Finally, with reference to the recording of professionals, the guidance aims to encourage overt rather than covert recording where appropriate and agreed. A number of professional associations working with children already have guidance to help frame an agreement for sessions to be recorded. The report helpfully appends guidance on the point provided by Nagalro (the professional association for Children’s Guardians, Family Court Advisers and Independent Social Workers) as long ago as December 2019, including precedent letters that formalise the terms under which audio recordings of sessions may be made.
Summary
The guidance offers helpful, much needed assistance to navigate the increasing occasions when clients may approach their lawyers armed with all manner of recordings that they consider provide objective, verifiable, irrefutable contemporaneous evidence of their “innocence” and another’s “culpability”. In fact, the contrary is often true. It is plain that by making such recordings a party may score a spectacular own goal which, rather than winning them the case, may in fact prove to be evidence which is held against them, including potentially even in separate criminal proceedings.
We shall have to wait to see how the courts apply this guidance in practice. Until then it offers a helpful framework within which to help lawyers and their clients steer a path to ensure that, when the issue of covert recordings arises, they provide conclusive truth rather than embodying the titular alternative.
