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Are Covert Recordings admissible in the Family Courts?

In the recent case of Re B (A Child) [2017] EWCA Civ 1579 Sir James Munby, the President of the Family Division of the High Court, said that the use of covert recordings in family proceedings has become a “much more pressing issue”. He identified the increased prevalence of covert recordings of conversations involving children, other family members and professionals being submitted before the family courts as evidence.

It may be said that the increased prevalence of covert recordings is not surprising, given the escalation in recording technology over the past decade. Due to the ever-increasing sophistication and miniaturisation of modern recording equipment it is relatively simple to record conversations.

The use of covert recordings as evidence is admissible in the family courts, albeit judges have the power to dismiss such evidence under the Family Procedure Rules 2010 Part 22.1. Nonetheless, recent case law suggests covert recordings of children are inadmissible in the family courts. In 2016 The Association of Lawyers for Children (the ALC) took the opportunity to make comment on the matter. The ALC drew a distinction between covert recordings of children and covert recordings of other adult parties and professionals. The ALC submitted that as a matter of public policy, covert recordings of children should rarely, if ever, be admitted as evidence in the family courts. In formulating this submission, the ALC referred to section 13(4) Children and Families Act 2014 which provides evidence resulting from the examination or assessment of a child is inadmissible in children proceedings unless the court rules that it is admissible.

This stance was affirmed in the case of M v F (covert recording of children) [2016] EWFC 29 in which Jackson J stated “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.”

In the case of Re B (A Child) [2017] the Court of Appeal took the opportunity to consider the admissibility of covert recordings in further depth. In this case the father of the child concerned sought to rely on covert recordings which included conversations with a solicitor, a Cafcass officer and a social worker. The trial judge, HHJ Bellamy, admitted the covert recordings in court, but concluded little weight should be attached to them. HHJ Bellamy purported to provide guidance as to how covert recordings should be considered in the family courts and ordered his judgment should be published.

However, the father appealed against the order for publication. Sitting in the Court of Appeal, Sir James Munby agreed the covert recordings were relevant to the proceedings and were therefore admissible. However, Sir James Munby did not agree with HHJ Bellamy that little weight should be given to covert recordings. He therefore granted the appeal and directed the judgment of HHJ Bellamy was not to be published, and the determination of weight given to covert recordings in family proceedings remains a matter for the respective judge.

On this basis, covert recordings of both children and adults are admissible in the family courts, but the weight of consideration given to such evidence remains a subjective determination for judges.

Bethany Lodge

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