By Farhana Shahzady
Incredibly, there are more mobile phones in existence than people in the world! We unequivocally live in a smartphone society and, as a result, it couldn’t be easier to take a cheeky picture or covertly record whatever is happening around you. An important and interesting question, however, arises in relation to family law proceedings about the admissibility of such covert recordings and whether it is ever a good idea to record in the first place?
One of the main obstacles to secretly recording is the Data Protection Act 1998 although, at Section 36 of that Act, it is stated that “personal data possessed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the Data Protection principles…” As a result, recording your personal or family life for court purposes within a private family law dispute doesn’t appear to be problematic under the DPA 1998.
Critics of covert recordings will surely counter-claim that under the Human Rights Act 1998, every individual is entitled to “the right to respect for private and family life”, but nor is that a sufficient obstacle to prevent recordings. It appears that family members do not owe a duty to one another under the Human Rights Act and, so long as recordings are used within private court proceedings or other personal, family or household purposes, a breach is unlikely under the HRA 1998 either.
With it established that covert recordings of family members can be used in court, it is still a matter for the court to decide whether it is going to admit the recording as evidence or not. The court has enormous powers and, under the Family Procedure Rules 22.1, the court can control whether covert recordings are to be adduced as evidence.
The approach taken by the court in relation to covert recordings has been explored in recent cases:
In the salutary case of C (A Child) , the father covertly recorded handovers of the child, recorded the mother on CCTV at his home and had taken photographs of the child during contact in an attempt to advance his case against the mother. From the judge’s point of view, the father was being “deliberatively provocative” and he was criticised for gathering evidence against the mother. The judge did not feel this was a case where the father was collecting evidence in order to protect himself against an unfair allegation, but rather he was emotionally abusing the child by making these covert recordings. In fact, the judge felt that the recordings amounted to “a form of intimidation and was abusive and therefore capable of being a subject of an injunction”.
In another important case of M v F (Covert Recording of Children) , the court again admitted the covert recordings as evidence but the judge clearly stated “It is almost always likely to be wrong for a recording device to be placed on a child for the purposes of gathering evidence in family proceedings, whether or not the child is aware of its presence”. This was a case where the father, with the assistance of his new partner, had sewn a bug into the breast pocket of the child’s school blazer. A second bug had also been sewn into the child’s school raincoat.
At least four devices had been used in total and recordings were made during countless occasions including when social workers / guardians had visited at the father’s home and also recordings at school. As far as the judge was concerned, this type of behaviour was disturbing and damaging whether the child knew it was happening or not. It revealed “more about the recorder than the recorded” and not only did the judge make a costs order against the father for over £10,000, but the court concluded the child should live with the mother because it was clear the father and his partner could not meet the emotional needs of the child. As a word of warning, the judge stated that “anyone who is considering doing something similar should first think carefully about the consequences”.
As family law practitioners, whose main job is often to obtain and marshall evidence for our clients, we advise our clients to keep contemporaneous notes and a proper paper trail with professionals along with speaking to the GP or the school, since that is a far better way of obtaining evidence than covert recordings.
It seems that using secret recordings is a double-edged sword and, although you may persuade the court to listen to them, you may find that you are viewed as intimidating, abusive and provocative as a result. If you live by the sword, then be prepared to be wounded by it at least, and please have a thought for your children.
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