Covert recording of parents and children in family cases

With the advent of portable technology, courts in the UK have seen an increase in the use of recorded evidence, either visual or audio in family cases concerning children.

These recordings might be carried out on phones, recording devices or cameras and may be made either openly or covertly.

For example, recordings are often made of handovers of children or their telephone calls with the other parent.

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Reasons for carrying out recordings

For those parents who wish to record their children and/or the other parent, reasons given often include:

• I want to protect myself from allegations from my ex partner
• This will prove that I am a good parent and that my child enjoys spending time with me
• This will show that the other parent acts inappropriately, for example is aggressive at handovers
• If this does go to Court, I will have definitive evidence to support my case
• I have nothing to hide, so why not?
• If I tell my ex-partner that they are being recorded, the aggressive and intimidating behaviour will stop and things should improve

If you are in a dispute concerning the care of your child, are these recordings helpful or not to your case and what is the Court’s view on them?

The Difficulties with Recordings

The main objections frequently raised to the making of recordings are:

• If the other parent is not aware they are being recorded this is unfair and the parent conducting the recording may change their behaviour because they are aware that they are being recorded
• It is intrusive and disrespectful both of the child and the other parent’s privacy
• Recordings can be edited and therefore are not always an accurate reflection of events.
• A recording is only ever a snap shot in time so must be considered alongside all other evidence and consequently is not definitive.
• If a parent is recording a child, inappropriate questions or prompting may take place leading to emotional abuse of that child.
• Recording a parent may be considered harassment, resulting in criminal proceedings and/or injunctions against the parent who undertook the recording

What is the Court’s view?

If you carry out a recording and wish it to be presented to the Court as evidence you may find that different Courts have varying attitudes on whether to even listen to or watch the recording.

The Court must consider recordings on a case by case basis. To be admitted as evidence the recording must be relevant to the issues before the Court and consequently the Court will have full discretion as to whether or not they will hear all or any of the recordings. Recordings may be relevant and helpful in certain circumstances, for example, if there is a dispute and allegations surrounding what takes place when children are handed over between parents. If handovers are recorded, the Court may form the opinion that it is helpful to view that evidence.

Ultimately if a recording is admitted as evidence, it is for the Court to scrutinise it, before considering how much weight to give it alongside the other evidence in the case. In making final decisions, the Court’s paramount concern is the child and ensuring that their best interests are met.

What does CAFCASS say?

The Court is also assisted by CAFCASS (the Child And Family Court Advisory and Support Service) who can carry out reports and make recommendations to the Court. If a parent presents a recording to a CAFCASS officer, their Operating Frame work provides guidance, making it clear that the Court should consider the recording first, is as follows:

“If offered such material, the practitioner needs to be aware that whether it is admitted into evidence will be a decision of the court and there may be issues raised by other parties about the validity of the material. While it may be appropriate to read/listen to the recording the practitioner should decline to accept it until the recording has been brought to the attention of the court and the court’s directions have been obtained.”

Parents should be aware that if the recording is admitted as evidence it may be listened to by a CAFCASS officer as part of their report to the Court and they will present their views to the Court. CAFCASS officers are independent professionals whose reports greatly assist the Court and whose views and recommendations often carry significant weight.

Summary

In summary, recordings can be helpful and they can be admitted as evidence to the Court, but only if relevant to the issues in the case. Any recording of a child or parent must be carried out with significant caution in light of the objections set out above. If not, the Court may decide that the parent that was recording acted inappropriately and that the recording is more damaging than helpful to the case.

When considering carrying out a recording be mindful of the pitfalls set out above, which may result in a recording being inadmissible or, worse still, damaging to your case.

A recent case highlighted the negative impact of recordings. In Re C (a child) [2015] EWCA 1096, the Father recorded the Mother and child on multiple occasions, including videoing the child naked. The Court found this to be emotional abuse of the child and harassment of the Mother and the Father was made subject to a Non-Molestation Order (injunction) not to film the Mother or child again, save for recording the child’s achievements.

How can we help?

Gemma Davison is a Resolution Accredited Family Law specialist and recommended lawyer in The Legal 500 UK 2017. She has conducted her own advocacy in domestic abuse applications, Children Act and Financial Remedy matters and acts for parents in disputes concerning living arrangements, relocation abroad, step parent adoption and allegations of abuse. She is also able to advise on issues surrounding fertility including surrogacy, co-parenting and LGBT matters.

If you would like to speak to Gemma regarding any issues raised in this article, you can contact her by email; gdavison@se-solicitors.co.uk or call her on 01869 222310.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.