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President invites FJC to consider covert recording of conversations for use in family proceedings

Detailed analysis of the rules of admissibility needed

The President of the Family Division, Sir James Munby, has invited the Family Justice Council to consider the whole question of covert recording of conversations for use in family proceedings. He said that he considers the topic to be of growing significance requiring, as a first step, deliberation from a multi-disciplinary viewpoint.

The issue arose in Re B (A Child) [2017] EWCA Civ 1579 which concerned an 11-year-old girl. In that case B's father alleged deliberate alienation by the mother. He sought to rely on covert recordings made over a number of years, including of conversations with a social worker, Cafcass officer and a solicitor.

The judge at first instance invited a number of interested bodies to make written submissions on the use of covert recordings, before delivering a reserved judgment of 166 paragraphs. The judge made two orders. The first was a substantive child arrangements order. The second was for his judgment to be published.

The father appealed both orders. King LJ dealt with the permission application (reported as Re B (A Child) [2016] EWCA Civ 1088). He was refused permission to appeal the child arrangements order and his complaint that the judge was biased was rejected as unarguable.

He was granted permission to appeal the second order for publication on a ground not raised by him, but which caused King LJ to conclude there was some 'compelling reason why the court should hear the full appeal' (CPR 52.36(b). She listed the permission hearing, with appeal to follow, before the President and her.

The President made some preliminary observations about covert recording [§9 to 16]. He pointed to a myriad of issues, very few of which had been systematically considered either at first instance or in the Court of Appeal – notwithstanding the number of authorities on individual elements of the issue:

(1) The issue had become more pressing in recent years with (a) the ever-increasing sophistication and miniaturisation of modern recording equipment [§11] and (b) the widespread distrust by some of the competence or integrity of the family justice system and its professionals.

(2) Although that distrust was often based in a mindset, as opposed to reality, there had been recent and shocking examples of professional malpractice which had been revealed only because of the covert recording of the relevant individual [§12]

(3) There was a distinction between open recording and covert recording; the latter being more problematic. There were at least three categories of covert recording: (a) of children; (b) of family members; and (c) of professionals [§13]. All involved different issues.

(4) With each nature of recording arose the questions of: (a) the lawfulness of the recording; (b) best practice outside of the courtroom; (c) the admissibility of the recording into evidence; and (d) other evidential and practice issues – e.g. disputes about authenticity, or the quality of the recording etc. [§14]

(5) The questions of who was doing the recording and why might well be relevant too [§15].

Although the President would not quibble with much of what the judge had said about this issue in his judgment (ultimately the judge had reached an unimpeachable conclusion on the present case), there were other issues with which he had serious concerns [§20-23]. The issue was too nuanced to set out sweeping statements of general principle and a more detailed analysis of the rules of admissibility was needed.

The President concluded by summarising the variety of ways in which guidance for the family courts is formulated and disseminated. Much of this was the role of the President, or by way of 'guidance judgments' by another judge of the division. However, the latter would very frequently require approval by the President and record such approval in the judgment. In this case, that was not done. [§24-28] With great respect to the judge's "laudable" aims, the President concluded that he should not have embarked upon the process of offering a guidance judgment that was open to serious challenge [§31].

The President considered the available options and concluded that the least inappropriate and unattractive was to give permission to appeal and to allow the appeal, to the extent that the judge's order directing the publication of the judgment would be set aside. A direction was made that the first instance judgment was not to be made publicly available. [§32-33]

For the President's judgment, prefaced by a summary by Tom Dance of 1 King's Bench Walk (from which this item is derived), click here. For an article on the subject – Covert Recording by Parents: Nothing to Fear but the Truth? – written by Farooq Ahmed of Westgate Chambers in April 2016, click here.