Covert Recordings: Family disputes (Guest Article)

The following article has been written, very kindly, by Jeremy Sogno, Partner, Lawson Lewis Blakers Solicitors. A big  thank you to Jeremy for doing this for me.


Can covert audio recordings of children or parties be admitted in evidence in family law cases between parents?

 

In private law family disputes (those between parents), one parent may wish to be able to prove a particular issue – for example what happens at the handover of the children and so on. The question then arises whether if a parent covertly records events (for example at contact handovers), will the Court take this evidence into account?

 A number of points arise:-

(1) The Family Procedure Rules 2010 require that permission of the Court is required before any evidence can be relied upon – that includes evidence from experts, lay witnesses and includes recordings.

The attitude of judges to these applications vary and are dependent on the facts. The writer’s experience is that judges are usually cautious before admitting this kind of evidence. The reasons are obvious in that the Courts tend to want to look towards encouraging parties to cooperate and build trust, and covert records are the opposite of this. In the pending case of M v F (covert recording of children) 2016, a father made recordings by sewing devices into the lining of the children’s clothing. The judge said “it is almost always…wrong for a recording device to be placed on a child for the
purpose of gathering evidence in family proceedings”.

The findings in this case reflects the writer’s own experience of dealing with this issue. Covert recordings appear underhand, it is corrosive of trust and many judges will instinctively want to discourage the practice.

(2) Data Protection – It is sometimes thought that gathering this data is in breach of the Data Protection Statutory regime. In fact, the GDPR regime doesn’t apply to the processing of data in the course of a “purely personal activity” ([Article 2 (2) and Data Protection Act 2018].

(3) Human Rights Article 8 of the European Convention on Human Rights (ECHR) provides for a right of respect for family and private life. However ECHR only prohibits interruption of these rights by a public body.

(4) The Courts tend to start from a position of distaste for and hostility to covert recordings of children to further disputes between parents. The Court might conclude that covert recordings is intrusive to the extent that it would grant injunctions to restrain it, or potentially to penalise one party with a “costs” order.

However, in the final analysis covert recording of children is not automatically unlawful and it may occasionally be admitted by the Court if there is no other way of proving a particular issue, if that issue really is material to delivering a fair outcome to a case. Extreme caution is needed.



Lawson Lewis Blakers is a long established solicitors' practice serving clients across Sussex and beyond, with a principal office in Eastbourne and branch offices in Peacehaven and Lewes. The can be phoned on 01323 720142 or you can email, via the form on their website.

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