Nowadays everyone who has a smartphone holds a computer in their hands. Just go into VoiceMemos for example and it is possible to record a conversation of good quality. It is also possible through the internet to obtain other types of voice recordings to include “bugging” devices easily and relatively cheaply. For example through E-bay.
In Children Act proceedings (usually) parents are becoming more aware of the ability to record conversations to further their own cases.
In private law children act proceedings (where the dispute is between the parents and a local authority is not involved) the Courts deprecate parents using coverts recordings. This is because usually the child(ren) are used by a parent to carry a recording device/bug. This is seen by the Courts to be emotionally damaging for a child, apart from other issues such as recordings being hearsay evidence and unlawful because of data protection legislation.
In different cases, parents have sewn bugs in their child’s teddy or clothing. In one case M -V- F (Covert Recording of Children) 2016 a child was used to record via it’s clothing for a period of 18 months. The child unknowingly recorded conversations that took place at school, at the contact centre, and conversations with her mother, and other professionals. The father’s partner then transcribed those parts of the recordings that she and the father thought were relevant. They gave little or no consideration to the fact that third parties had not agreed to the recordings; and the effect upon the child. The Court held that the recordings were admissible but said that the father should contribute to the mother’s costs of dealing with the issue of the covert recordings. And even worse for the father – the Court ordered that the child should move to live with her mother – as the recordings were “prominent” in demonstrating that the father and his partner could not meet the Emotional needs of the child.
In public law cases, covert recordings have been admitted when such recordings have discredited for example, an expert, a psychologist and in another case a foster carer. In these cases the covert recordings were allowed because exposure of the expert/foster carer was obviously critically relevant to ensuring a fair hearing; and the recordings were not too voluminous and were contemporaneous.
So in conclusion in private law proceedings the Court will penalise a parent for using a child to undertake covert recordings usually in costs and changing the child’s residence. In public law cases the Courts seem more prepared to allow covert recordings because so far the recordings having been directly relevant to ensuring a fair trial. Both the use of covert recordings should in whatever context be approached with a lot of caution.
There have been recent calls for guidance on the issue of covert recordings because it is becoming more and more of an issue In the family courts; and will only continue to do so with advances in technology. This is an area of the law where clients need clear guidance and advice – so please contact us via our website contact page or via e mail firstname.lastname@example.org