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Technology and therefore the ease of making and editing covert recordings on mobile phones and other devices continues to advance, leading to family practitioners increasingly receiving recordings by or of their clients. The cost of dealing with these recordings can be significant, potentially including fees for hours of transcriptions, satellite litigation to decide on admissibility and time spent by both parties’ legal representatives listening to or watching them. Careful consideration therefore needs to be given as to whether such evidence is going to help or hinder a client’s position and what the true cost implications may be at the earliest opportunity.

The majority of recent case law in this area has been focused on recordings involving public bodies and so the Family Justice Council (FJC) produced draft guidance in December 2022, dealing with the use of covert recordings by individuals in private children proceedings, which is summarised below. There is no indication at the moment as to when that guidance may be issued in its final form. As the guidance identifies, there are very detailed laws and regulations controlling the way in which public agencies can obtain and use covert recordings, with serious consequences for getting it wrong. However, the same cannot be said of covert recordings by private individuals. Given both are being used as evidence within proceedings, there is a gap in authorities on the topic, necessitating this guidance.

The court’s approach

Legislation

The guidance confirms that covert recordings are likely to be considered hearsay under the definition at section 1(2) of the Civil Evidence Act 1995 (CEA 1995), although the court has permission to admit such evidence, even without notice, under CEA 1995, s 2(4). Practitioners are also referred to CEA 1995, s 4 for useful factors when considering admissibility.

Other relevant legislation includes:

• Family Procedure Rules 2010, SI 2010/2955, 22.1, which provides the court with general case management powers to control the evidence
• section 2 of the Children (Admissibility of Hearsay Evidence) Order 1993, which provides for hearsay evidence to be admissible if given in connection with the upbringing, maintenance or welfare of a child, and
• section 13(3) of the Children and Families Act 2014, which this provides that a person may not without the permission of the court cause a child to be medically or psychologically examined or otherwise assessed, for the purposes of the provision of expert evidence, without the court’s permission – if a recording involves the questioning of a child, it could be inadmissible on that basis, although the court can use its discretion

While it is useful to be aware of the relevant legislation, what is clear is that the court has flexibility and will mainly focus on the probative value, relevance and weight of the evidence.

How practitioners should approach covert recordings

Initial steps

The guidance emphasises that practitioners must take enormous care when deciding whether it is appropriate for them to listen to or read covert recordings or assume they are genuine and suggests the following two approaches, depending on whether proceedings are live or not:

• recordings offered outside of proceedings – legal advice should be given as to implications before professionals participate in listening to the recording and professionals should clarify the basis on which the recording can be shared or used with the client first
• recordings offered within proceedings – the correct approach is to treat this as a case management issue and take the same approach as CAFCASS, being not to view or listen to recordings until the court determine whether the material should be admitted into evidence – it is difficult to picture a situation where a practitioner would make an application to the court on the strength of evidence that they have not seen or heard and it is suggested that practitioners apply the same criteria as the court in relation to admissibility and provide clients with extremely robust advice as to the risks, prior to listening to or viewing the recording

If the client has not made a recording yet but is suggesting they do so, practitioners should advise them to record overtly with informed consent. Practitioners need to consider the practicalities of such a recording, including making it available to the other party, ensuring the interests of the child are centralised and that there is prior agreement as to how it will be stored, disclosed, edited and retained (particularly with an eye to GDPR on the latter point).

Advice as to the risks

Considerations will include whether the covert recording is unlawful, including whether:

• it is a breach of Article 8 of the European Convention on Human Rights, although this duty is not owed by family members
• it a breach of the GDPR – this may potentially be the case and the guidance highlights the words of Peter Jackson J (as he then was) in M v F (Covert Recordings of children) [2016] EWFC 29, when he commented that he felt the exemption within the legislation applying to normal domestic use may not apply to recordings processed for evidence gathering purposes, particularly if then shared with a professional or body
• there is a derivative civil action under the Data Protection Act – again, this may possibly be the case as it is an offence to knowingly or recklessly obtain personal data without the consent of the controlled or procure or obtain disclosure without consent, and
• it is harassment – clients need to be advised as to the potential impact of the recordings, particularly if there are ongoing criminal proceedings or police involvement

The application of the above considerations could also of course affect admissibility. The court might take the approach in Tchenguiz-Imerman v Imerman [2012] EWHC 4047 (Fam), [2014] 1 FLR 232, to exclude evidence obtained by unlawful means. Again, the court has a wide discretion and so deeming recordings to be unlawfully obtained or even just being frowned upon will not mean the evidence is not admissible, as highlighted in Vaughan v London Borough of Lewisham and others [2013] EWHC 4118 (QB). This further heightens the risk and uncertainty of attempting to rely on covert recordings and the range of potential consequences must be brought to the recorder’s attention at the earliest opportunity.

Whether a covert recording may be damaging to a client’s case should be considered from the outset. In M v F Peter Jackson J held that recordings of children are almost always wrong, as any perceived value is outweighed by the potential harm to the child. Further, a consideration may be whether the child has just learnt that one parent likes to hear bad things about the other.

Whether the recording is of a child or not, consider whether the recording demonstrates distorted or obsessive thinking or controlling or abusive behaviour. Does it show the recorder to be prioritising attacking the other parent over the emotional welfare of their child or otherwise prejudice their case? If the issue of admissibility does not fall in your client’s favour, the court might still consider the existence of the recording as relevant to the issue of welfare, meaning they could lose on both fronts. Do they really still therefore want to risk attempting to use the recording as evidence?

In relation to admissibility, the court will focus on the probative value, relevance and weight of the recordings. When advising clients, ask, is the recording required to show what was said or does it evidence something said to be true? Could the statement instead be taken out of context or has the recording been manipulated? Is it demonstrably a record of the entire conversation, as the court will look to authenticity, completeness and scope?

Interestingly, the FJC has prepared the guidance with reference to the views of children themselves, which formed part of their research. Unsurprisingly, children identified some benefits to overt and controlled recordings as a way to feel heard or protect themselves. However, they did not support covert recordings due to risks of feelings of betrayal, discomfort, fears of manipulation and coercion. Most insightfully, the children felt that any covert recording could risk damaging their relationship with the recorder, regardless of the intent of the recorder. Practitioners should therefore be centralising children in these case management decisions and asking parents to consider how their children would feel if the recordings came to light. The court will consider whether the child needs to be represented, informed of the recording or even asked to give evidence to evaluate the recording. This will surely make most parents think twice?

Making an application

If, after considering all of the above, a client still provides instructions to produce the evidence, the application should be made on notice using Form C2. Late production risks an adjournment. The following should be detailed:

• a summary of the nature of the recording
• the recording’s context
• whether the recording is edited
• the relevant dates and times of the recording
• the methodology of recording
• details of why the recording was obtained covertly, and
• the relevance of the recording to the issues within the proceedings

Also consider the potential directions that the court might make, which are likely to cover:

• the methodology of disclosure
• whether transcripts are required
• what is required to establish the full scope of recordings
• which recordings fall outside those to be considered
• how any editing issues may be overcome
• implications as to the children’s welfare or that of the other party
• any costs applicable, and
• any further satellite hearings needed on the topic of admissibility