The Role of Covert Recordings in Family Law Proceedings – Insights and Admissibility
Covert recordings may seem like a straight-forward way to gather evidence in family law proceedings where accounts can sharply differ. They seem to offer a way of combatting different versions of events, as well as, appearing to provide crucial proof and documentation of things said. Overall, they seemingly capture a clear reality of the situation. So, on the face of it, covert recordings sound like the way forward… right?
Not quite… guidance from the Family Justice Council warns professionals who are offered covert recordings in proceedings that an approach needs to be taken on a case-by-case basis.
This raises the question that if covert recordings can combat different versions of events, why are they taken on a case-by-case basis?
The first thing to address is that if one party is recorded by another without their knowledge, the content may be manipulated – recording might capture only one part of a conversation and therefore could omit important context or selectively representing interactions.
In addition, covert recording could be seen as an act of abuse, and it may be viewed as a weapon of intimidation from one party to the other.
Finally, there can be profound consequences for the welfare of any child who is made the subject of a covert recording by their parent. Whilst a parent likely records their child to provide evidence relating to a disputed issue, the evidential value can instead indicate the lack of parents’ capability to understand and promote their child’s emotional needs and protect them from harm.
Where does this leave the admissibility of covert recordings? Covert recordings can be admissible as evidence. However, the judge’s permission is required, and it is an issue that is hotly contested by the parties. A recording can be reliable evidence in court; however, the court is unlikely to give permission unless it is clear that it is both relevant and reliable.
In Re B (A child) 2017, Sir James Munby identified covert recordings as a more pressing issue than ever due to the ever-increasing sophistication of modern recording equipment. Within this, the court identified that “questions may arise to as the lawfulness of what has been done; best practice outside the court…; the admissibility of the recording in evidence; and a variety of other evidential and practice issues”.
Following this, the Family Justice Council in December 2018 debated the issue and recognised recordings can be of value. For example, some cases recordings may expose inappropriate behaviour of the party being recorded, however, in other cases, as mentioned previously, it could demonstrate attempts of control. Thus, concluding that each case will be carefully considered on its own facts.
Overall, whilst covert recordings may seem like a straightforward solution for establishing facts in family law disputes, their use is extremely complex. The Family Justice Council emphasises that recordings should not be automatically admitted, but instead assessed individually on a case-by-case basis. This approach recognises their evidentiary value, whilst also acknowledging potential misuse, thus ensuring the courts act fairly.