The Family Justice Council (FJC) has published guidance for professionals and litigants who represent themselves on the use of covert recordings in family law proceedings. This guidance became necessary after a marked increase in parties in family law disputes using readily available technology (smartphones etc) to record their children or other parent / ex-partner in the hope that the footage would assist their case.
It is not uncommon for clients to provide us with recordings. We are told they show us what a child has said, that it evidences how the child really feels or confirms what they have experienced about the goings on in the other parents home. However, largely, the videos are of little value. They are often piecemeal, edited or cropped with no context as to what came before the recording started. That is not to say we don’t sympathise with why a parent has recorded their child; they are often desperate for the court, experts and lawyers to understand what they are experiencing ‘on the ground’ and they fear without that footage they may not be believed. However, it’s important to take a step back and consider the impact of the act of the recording itself. A younger child cannot provide consent to being recorded in this way. The guidance is clear staring that ‘the covert recording of children rarely promotes a child’s welfare whatever the intention’.
The President of the Family Division of England and Wales and Chair of the Family Justice Council, Sir Andrew McFarlane, said: "Whilst some covert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children and professionals, causing harm and often leading to concerns about the accuracy of the recording."
In realiton to recording other family members who aren’t children, the guidance states that ‘parents may perceive a covert recording as the only way to illustrate their experience of the behaviour of which they complain. However, in some cases the recording is a form of surveillance that in itself can be an example of distorted and obsessive thinking that can constitute a form of harassment, or be controlling or abusive.’ Again, the party recording needs to seriously consider how their actions can be perceived, particularly if the recording forms part of a pattern of behaviour.
There may continue to be cases where recordings provide evidence or insight into behaviour but whether that evidence is helpful or should be used will need to be very carefully considered taking into consideration all relevant factors of the case and the purpose and nature of the recordings.
The guidance is far more detailed and complex than the above short summary and is well worth a read.
Family Justice Council Guidance