Can I use covert recordings in family court proceedings?
After much anticipation, the Family Justice Council (FJC) has now formalised their important guidance on the use of covert recordings in family law proceedings. Covert recordings are those made without the knowledge or consent of the person being recorded.
In this article, I will consider the significant legal, ethical, and evidential issues that these types of recordings can present.
Legal Considerations
The guidance emphasises that covert recordings may be admissible in family court proceedings, but those seeking to rely on such recordings must proceed with extreme caution. The primary concern is whether the recording is relevant and proportionate to the issues in the case. The court will also consider the impact that the recording may have in determining welfare issues concerning the child.
Ethical Concerns
The FJC stresses the importance of the ethical implications of covert recordings. In family law cases, where the relationships between parents, children, and other family members are often at the heart of the dispute, covert recordings can undermine trust and exacerbate conflict. The court may view that making recordings of another without their knowledge can amount to abusive behaviour in itself. In almost all cases, it is considered wrong to make a covert recording of a child.
Court’s Role in Assessment
The court must assess the admissibility of any covert recording with careful consideration. Factors such as the circumstances under which the recording was made, the content of the recording, and the potential impact on the individuals involved are crucial. When viewing recordings we need to proceed cautiously and with some degree of scepticism. It is important that those that wish to rely on a recording make a formal application to the court at the earliest opportunity so that the court can consider whether the recording can be used in evidence.
Conclusion
The Family Justice Council’s guidance on covert recordings highlights the need for caution and careful consideration when such evidence is introduced in family law cases. The guidance is not a step by step guide on how to ensure that recordings are admissible but more a word of warning to those engaging in the making of recordings and to ensure that practitioners are properly advising their clients as to potential consequences of using covert recordings.
If you want to read the full report, please click here.