Covert recordings in children proceedings

With the continuing advance of technology, there are increasingly inventive ways to try and get an advantage in legal proceedings.  One issue that increasingly crops up is the use of audio or video recordings within children proceedings, whether recorded overtly or covertly.  Parents may be tempted to record a situation, a person or a child in an effort to protect themselves, prove a point, or criticise the other parent.  This approach can, however, backfire and be more harmful than helpful to their case.  The Family Justice Council has published guidance/warnings and there are several points worth noting:

• There is an absolute prohibition on the covert recording of court hearings.  Due to their nature, court hearings are recorded by the judiciary as a matter of course.  Transcripts can be requested by either party after the hearing.  There is therefore no need to record attendance at a hearing and to do so without permission can constitute contempt of court, which can lead to a fine or imprisonment.

• The recording of experts and professionals should not be necessary, but if there is a desire or intention to record then this should be expressed in advance to the expert or professional.  It is likely that any report will include reference to the participant wishing to record the meeting or assessment. There are some instances where covert or overt recording would undermine the validity of expert assessments, particularly those in neuropsychological assessments where recording can influence interaction, performance and behaviour.

• Parents covertly recording one another can be considered a form of surveillance which suggests obsessive or distorted behaviour that can constitute harassment, bullying or control.  This may not be intended by the recording parent, but this is how it can be perceived by the court and other experts.  There is an implication of invasion of privacy and these behaviours can be considered highly relevant to determining the welfare of a child, often to the detriment of the recording parent. 

• There are very few cases that prove that a parent recording a child is helpful to the court.  The recording (or ‘bugging’) of a child will often say more about the recording parent and their own ability to judge what is relevant and appropriate behaviour.  It can often be the case that what is recorded is not of evidential value other than in assessing the capability (or, more relevantly, the culpability) of the recording parent.  Children can become attuned to the fact that one parent is seeking criticism of the other parent and to do so risks the emotional welfare of the child. 

• If a recording has been made that is considered relevant and to which the court should give evidential value, an application will need to be made for the recording to be adduced into the proceedings.  It is preferable that the recording has not been edited as context is everything and the court and other professionals may wish to (and indeed may need to) listen to the whole recording.  Covert recordings of a child will not have been conducted with the permission of the court and such evidence remains inadmissible unless and until a court rules that it is admissible. 

• It can be an expensive process for the court to consider whether recordings should be admitted into evidence.  Arguments over the admissibility of covert recordings, and the extent to which an individual’s privacy may have been breached, often lead to additional hearings to specifically address the issue.  This can in turn lead to time delays and additional legal fees for the parties, and an application for admissibility may not succeed.  

• Where parties disagree as to authenticity, an independent expert may need to be appointed to report to the court.  Instructions to the expert will need to consider context, interrogation of devices, metadata analysis, default recording and time formats, timestamps, glitches, flaws, splices or chops, background noise, voice texture and vocal content.  It will be a full forensic analysis of the recording and the parties will need to share the cost of the expert. 

It can be seen, therefore, that the ease with which recordings can now be made does not translate to automatic admissibility into evidence.  The desire to record should be approached with real caution and consideration if an individual is to avoid adverse inferences of their own conduct being drawn by the court.

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