Secret recordings in family proceedings – a help or a hindrance?

When people become involved in family proceedings, whether in relation to divorce, money or children, emotions often run high. In that state of mind, people can sometimes take actions which, in calmer times, would not cross their minds.

One example which family lawyers are now experiencing more frequently is the making of secret recordings, to be used as evidence in the case.

Background

Sophisticated technology for recording and tracking people is increasingly available at relatively modest prices, both online and on the high street. Voicemail messages can be recorded, whether left on a mobile device or a landline, as can telephone conversations. Face to face conversations can secretly be recorded either on a mobile phone or other recording device.

The extent to which technology aids someone to listen to and record conversations does not end there. There are products now available which make it possible for one person to listen to a conversation taking place between others.  For example, there is a brand of watch that can be used as a tracking device linked to a parent, guardian or carer's smartphone. It also has an emergency button which the wearer can press to alert a third party if they find themselves in difficulty or danger.

That device can also be used to listen to the surrounding environment of the wearer, against their knowledge.

These devices can be used for entirely sensible and reasonable purposes. For example, a parent or the carer of a child with learning difficulties or of an elderly person who is forgetful, might well find such devices a useful addition to their caring responsibilities. In those circumstances, no realistic complaint could be made about the use of the technology, although the issue might arise as to whether the person carrying the device should be made aware of their potential.

A much more pressing issue for family lawyers, the courts and the parties involved is that which arises in family proceedings when secret recordings are made and which are then put forward as evidence in the case. Only recently, the most senior judge dealing with family cases, the President of the Family Division of the High Court, highlighted the increased prevalence of recordings of children, other family members and even professionals, which are being placed before the courts as evidence to support one party's position or to undermine that of the other party. It is not difficult to understand how such a function might well be regarded as 'useful' to a party wishing to record or listen in where they would not otherwise be able to do so.

The law

Evidence obtained by secret recording can technically be given in a case in court, although a judge has very wide powers to exclude it. In proceedings involving children, the evidence will be allowed as the recordings may be relevant to issues relating to a child's welfare and/or be helpful to a Judge when considering the wider context of a matter.

Having said that, the following issues may be considered:

  • the relevance of the recorded evidence to the case
  • whether the recording is genuine or has been edited
  • whether the person/people whose voices have been recorded are of who the person producing the evidence says they are
  • whether any criminal offence has been committed (for example, someone has been bribed or placed under duress to say something which is not true).

In every case, it is for the judge, whose task is to ensure a fair trial, to decide whether the evidence can be given in court and if so, how much importance should be attached to it.

In a case in 2016 which received considerable publicity, a father and his partner made many secret recordings of the child involved in the case. These recordings were obtained by the father through going to such lengths as sewing recording devices into the child's clothing. The transcripts produced for the court ran to more than 100 pages. The judge castigated the father and stated in his judgment that:

 'It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings…This should hardly need saying', concluding that 'experience suggests that such activities normally say more about the recorder that the recorded'.

Guidance

There is surprisingly little authority or judicial guidance on this issue. Perhaps this is because it is only relatively recently that technology has made making such recordings so easy. It is likely that it will not be long before clarity is given to this difficult area. The general rule in family cases is that the courts will hear any evidence that may have a bearing of the outcome of the case provided it is relevant, believable and has been properly obtained.

The dangers of a party behaving in a way which is less than fair are apparent from the case mentioned above. As always with issues of this sort, it is wise to take sound legal advice: our lawyers are experienced and will have a clear idea of how to balance the risks against the possible dangers of using evidence obtained in this way.

For more information or some preliminary, confidential advice, please contact Simon Thomas, Head of the Family Team by telephone +44 (0)1392 687630 or by email simon.thomas@michelmores.com.