This post is in respect of applications in private law proceedings and does not relate to recordings of professionals.
The answer is maybe!
As the majority of people in the UK now have access to a smart phone and purchasing a recording device is just an amazon-click away, the issue of secret recording (aka covert recording) is arising more and more frequently in family cases.
You may be tempted to start making recordings if your ex-partner is being abusive towards you or making allegations of abuse against you; for example, at handovers of the children. However, you should be cautious before you start making such recordings because it often reflects badly on parents in Court and doing so may be considered abusive in itself. If you have done so or plan to do so it is highly advisable to discuss this with your solicitor or barrister at the earliest opportunity.
In what circumstances will the Court listen to the recording?
There is no hard and fast rule about whether covert recordings will be admissible in the Family Court and it will depend on the circumstances of the case. The main question will be: is the recording relevant to the issues that the Court is considering? Or is it relevant to the considerations of the child’s welfare? If it is not, then it is unlikely that the Court will agree to hear it.
Other considerations about the admissibility of recording (and what weight the Court attaches to it) will include the following:
- was it lawfully obtained?
- it is a complete recording or has it been edited (potentially in a way which is unfavourable to the recorded person)?
- are there problems in relation to sound and picture quality which mean that it cannot be relied upon or which raise questions as to the authenticity of the recording?
It’s important to note that if the Court does agree to admit the recordings then they may need to be transcribed, which can be costly.
What about recording the children?
It is likely that secret recording of children will be viewed unfavourably by the Courts. In many cases there are allegations about what happens during contact sessions, but if sessions are recorded parents risk being criticised for this very act.
Guidance from previous cases
There is currently no published guidance on the admissibility of covert recordings so we have to look at previous cases for assistance.
In the case of Lancashire CC v Z (Parental Hostility)  EWFC B71 a father had recorded a mother during an argument, and although it showed the mother’s uncontrolled anger and bad language, the father was also criticised for his part in the argument and for secretly recording it in the first place. In that case, the father was subjected to even more criticism for recording the children, which ultimately resulted in the child being scared that her father had hidden a recording device in one of her toys.
In Re W (minors)  EWFC 80 the judge stated that he considered the father’s covert recording of the mother and children was a ‘deceitful act’ which only undermined trust between the parents.
In M v F  EWFC 29 a father was very harshly criticised for sewing ‘bugs’ into his daughter’s school uniform. The Court agreed to hear the recordings but relied on them as a reason that the child should be removed from her father’s care and live with her mother instead. The fact that the father had made the recordings was taken as evidence that he could not meet his child’s emotional needs.
If covert recordings are an issue in your case our specialist family barristers will be able to advise and represent you. If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best suited to your case.