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Covert Recording by Parents – Nothing to Fear but the Truth?

Farooq Ahmed, barrister of Westgate Chambers and recorder, addresses the legal issues arising when parents embroiled in children proceedings record conversations or events.

Farooq Ahmed, barrister, Westgate Chambers

Farooq Ahmed, barrister, Westgate Chambers

"It's not something decent people do"
There is something not very nice about secretly recording what people say. It's not very British. It carries with it the notion of being underhand and conjures up images of private investigators in dark corners listening through walls. However, is the stigmatization justified or is it time to look at the possible benefits, as well as the negative aspects, of recording conversations and events, whether covertly or openly?

Why might someone want to do it?
A fertile area for disputes about what was said and how things went is contact, especially handovers of children from one parent to another. Another is conversations between parents and professionals, both in private family law disputes about living and contact arrangements and in care proceedings. In the latter, parents are confronted with a power imbalance. The social work records contain notes from conversations with parents. They are often regarded as definitive because they are made by someone in authority. The parents feel that they cannot take notes. In any case, it is very difficult to write and maintain eye contact and attention on what is being said.

Before the introduction of routine recording of police interviews of suspects, there were common allegations of inducements and falsely reported admissions. Once virtually mandatory (with some exceptions) recording came in with the Police and Criminal Evidence Act 1984, these all but disappeared, to the general good. Paragraph 1.3 of Code E of PACE states:

"Recording of interviews shall be carried out openly to instil confidence in its reliability as an impartial and accurate record of the interview."

There can be legitimate reasons for recordings being made in children's cases. These can include:

What does Cafcass say about it?
Cafcass is forward thinking, realistic and pragmatic about covert recording. In its Operating Framework document it states:

"We should have nothing to fear from covert recording. Our attitude should be, 'I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did'. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge."

Cafcass identifies the sort of covert recordings that practitioners may be asked to watch or hear. These include: a recording of a contact session with a child without the other party's knowledge or the consent of the court; a recording of a telephone conversation with the other party or another person; a recording made by concealing a device on a child. Cafcass offers the following guidance to its practitioners:

"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."

What are the views of The Transparency Project?
The Transparency Project is an organisation which sets out on its website its aims as being "to promote the transparency of Family Court proceedings in England and Wales through providing straightforward, accurate and accessible information for litigants and the wider public."

In December 2015, it published some helpful guidance about recording conversations between parents and social workers, but states that the guidance does not apply to recording children and rather shies away from exploring the issue. The guidance is not legal advice, but nonetheless considers the lawfulness of making recordings and readers are referred to it.

Does the law prohibit covert recordings?
The main statute which is frequently cited as an obstacle to recording is the Data Protection Act 1998. However, that does not prohibit covert recordings for personal or family use. Section 36 provides:

"Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III."

The recording for court purposes in a family dispute falls within that exemption because it is for an individual's personal or family affair. Of course, the court will still have to be asked for permission to adduce the recording in evidence and the court can decide to whom it may be disclosed.

As an illustration of the approach taken to interpreting s36, the Information Commissioner's Office gives the following example:

"An individual records the highlights of their summer holiday on a digital camcorder. The recording includes images of people they meet on holiday. Although those digital images are personal data, the domestic purposes exemption applies. None of the data protection principles apply in these circumstances, nor do any of the rights which the Act gives to data subjects. There is also no need to notify the ICO about processing for these purposes."

Another statute, mentioned for completeness, is the Regulation of Investigatory Powers Act 2000. It applies to surveillance by public bodies and to their accessing personal electronic communications. It does not prohibit or regulate covert recording by private individuals.

Breach of confidentiality is another potential obstacle to covert recording. However, confidentiality issues really only arise if the recordings are distributed or published. That applies to any information about the case and so it is not of itself a barrier to covert recording.

As to a possible human rights breach of Article 8 if recording a meeting with a social worker or other professional, it is the private family life of the family in the proceedings which is the subject of discussions and clearly not the private life of the professionals. In the case of a contact handover of a child from one parent to another, it is difficult to see how there could be a valid Article 8 objection to an accurate and comprehensive written note being made of the event and conversation. It follows that it is even more difficult to see how there could be such an objection to an audio recording being made of it. The privacy relating to the event is the same. It is only the method of recording the information which is different. It is rather what is done with the recording that might conceivably lead to Article 8  or Data Protection Act problems. Any such recordings would need to be for intended use in court proceedings or other personal, family or household purposes. Any such arguments would be considered at the court hearing.

Other potential problems
There is potential for problems with the covert recording of children. These relate to matters surrounding and consequential to the recording, rather than the principle of recording itself. For example, there may be inappropriate questioning of the child for the purpose of gathering recorded evidence, which may be emotionally abusive. However, that can happen, whether or not the questioning is recorded.

Another possible problem is that the child may discover that he is being recorded and ask why. The parent may be able to say something such as, "we are having such a nice time that I will want to listen to it again." That is where the age, maturity and understanding of the child become especially important. If the child discovers that he is being recorded, he might be angry and upset by it. In those circumstances, there will be difficulties which require careful management and reassurance.

Other reasons for not covertly recording are that there is likely to be resentment and damage to relationships from loss of trust. The covert recorder might be excluded from using the contact centre or from meetings. Covert recording is often regarded as an infringement of privacy at a personal level, regardless of legal principles. However, just to balance that a little, it could be argued that professionals rarely ask the parent for consent when making notes of their conversation, nor do they normally show them their notes to check for accuracy. It may be asked why trust should be only one way and not also a matter of the parent being able to trust the professional. An audio recording, whether covert or overt, could settle any dispute about what was said in any event.

What do the courts make of covert recording?
Court attitudes vary enormously. Some judges will immediately baulk at the idea of introducing covert recordings into a case and object strongly to the making of the recording in the first place. One judge 'instinctively' felt that it was wrong. However it is submitted that it is, in principle, a legitimate and generally lawful thing to do. It is the use to which the recording is put which can carry significant restrictions.

In order to be admissible, the recording must be relevant to the issues before the court. So, for example, if a covert recording has been made by a parent only for the purposes of a complaint against the social worker whom she is recording, it will probably not be admissible in care proceedings unless there is some issue within those proceedings to which it is relevant.

An example of a case in which both overt and covert recording was not allowed is Re C (a child) [2015] EWCA 1096. The recording was done in such a way as to amount to a form of intimidation in the context of that case. The father persistently filmed his 7 year old daughter at home, at school and when out and about. He filmed her private parts because she had nappy rash, although he did not take her to the doctor. He was quite unable to understand that his recording and filming of her were emotionally abusive of her. He was looking for the means to criticise the mother, and the child would come to know that sooner or later. The recordings had been topped and tailed and had been edited. They included repeat questioning of the child which was leading and suggestive. The mother said that the child had learned that her father liked to hear bad things about her. Not surprisingly, this conduct was not considered to be child focused and was harmful to both the mother and the child. A non-molestation injunction was made by the lower court, preventing any further recording of the child and the mother, save for such things as the child's achievements. The Court of Appeal upheld the injunction. The submission that covert recording could never be regarded as abusive was rejected as that went too far. The position was that whether covert recording could be abusive was [case] specific.

In summary therefore, the fact of recording, either covertly or overtly, at handovers or family arrangements is capable of attracting a non- molestation order where it amounts to harassment. However, it follows that the Court of Appeal recognises that there will be other circumstances where the covert recording of events is not harassment and that such evidence may properly be admitted and relied upon.

An example of that may be where a mother comes to pick up the children from the father's home after contact and she behaves in a violent way such that the children are frightened and crying. A father who covertly films or audio records that sort of event for the purpose of showing the court what actually happened, there being no independent witnesses, could surely not be criticised for his actions. It would be difficult to justify excluding the recording, its being highly probative and its having been made for the purpose of child protection. Those facts are from a real case (unreported), in which the result was that the children were removed by the court from the mother's care, on the basis of the recording. Until she was confronted by the video recording, she had been denying that she had acted in any improper way. Covert recording resulted in protection of the children from significant emotional and indirect physical harm from their mother. 

Sometimes, there is no argument about whether covert recordings are admissible; the judge simply decides that she will listen to them. Such a case was H v Dent [2015] EWHC 2090. A father made covert audio recordings of conversations that he had had with professionals from Cafcass. He wanted to use them to show that his agreement to a consent order had been obtained as a result of undue pressure or duress. Mrs Justice Roberts decided to listen to the tapes, but she concluded that they did not support the father's case. There appears to have been no legal argument about the principle of making covert recordings to support a party's case.

Her Honour Judge Mary Lazarus admitted covert recordings in Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66. The mother had decided to covertly audio record the foster carer after a series of incidents of verbal abuse towards and mistreatment of her which had not been believed before the recording was made. They were proved by the recording. Again, there appears not to have been legal argument about the use of the recordings, perhaps because it was thought that they were obviously admissible. HHJ Lazarus makes the following concluding observation:

"It is salutary and sobering to consider that there are many children in foster care, and many parents in parent and baby foster placements, and there will be occasions when parents complain about their treatment in those placements, but that it is the frequent practice in care proceedings not to require the foster carer to attend court, but to rely upon their notes and the social worker's evidence. In the light of Re A [2015] EWFC 11 and Re J [2015] EWCA Civ 222, and an example such as this case, it will be all the more important to consider with a sharp focus the nature of the evidence that the court needs to consider, and best evidence in particular. In this case, the parents' allegations were frankly treated dismissively from the outset. But for this court's willingness to permit the consideration and transcription of the recordings, despite the extreme lateness that they were provided, in combination with the requirement that the foster carer attend to give evidence (which was correctly anticipated at the IRH), it would have been impossible to gain a just and proper understanding of this case."

What are the controls, limitations and requirements on audio and other recordings?
Under rule 22.1 of the Family Procedure Rules 2010, the court can control the nature of the evidence that it requires, as well as the way in which the evidence is to be placed before the court. The court is able to use this power to exclude evidence that would otherwise be admissible. That means that the judge can decide that a covert recording cannot be used in evidence. However, the judge's discretion is not absolute and it must therefore be judicially exercised. Clear reasons for the exclusion would have to be given because an appeal court would need to know how the decision was arrived at, what factors had been balanced and how the need for a fair hearing with the best evidence had been addressed.

The recording may be challenged as to its authenticity and as to whether it has been edited. That is most likely to be raised by a party taking a specific objection to the provenance of the recording. A party might deny that it is his voice on the recording and seek to undermine it in that way. That can be resolved by hearing evidence, as can any allegation that a recording has been edited. Photographs, of course, can be changed using software, yet judges readily look at them and accept them as genuine. The same applies to Facebook and text message printouts, which can be altered. Handwritten or typed notes of a meeting will rarely be verbatim accounts and are unlikely to be complete as it simply is not practical to record everything. Unless there is a particular reason to think that the recording has been tampered with, it is not justifiable to insist on an expert to examine to vouch for its authenticity. Even if the audio recording of an event is partial, it may still have probative evidential value. Its integrity can be challenged by oral evidence in court.

The recording obviously needs to be clear and accurately transcribed. It should not have to be transcribed independently as the transcript can be checked against the audio recording. Copies of the transcript and of the original recording will need to be provided to all relevant parties and to the judge.

It appears that parents may covertly record events such as their conversations with professionals, contact handovers and contact itself, without necessarily contravening any statute or rule of law. Recordings of meetings between social workers and parents, whether carried out covertly or openly with permission are likely to be the best evidence of what happened and what was said. Many of the common factual disputes about whether a child was resistant to seeing his father at the contact handover or that the contact itself must have gone badly because the child was upset on return would be resolved easily by listening to the recording. Provided that there is no risk of significant harm to a child in covertly recording in the particular circumstances of an individual case, there is a good argument in favour of such recording where necessary, especially as the court is able to control the subsequent use of such recordings. However, the conditions of use of a particular building or resource for contact visits or for assessment may prohibit such recording and carry the sanction that the person recording may no longer enter the building or use the resource. What seems clear is that parents who make covert recordings of meetings with adults and children for the purpose of providing proof of the truth should not always be criticised or seen in a bad light for doing so.