Covert Recordings in Children Proceedings

The Family Justice Council recently released new guidance on Covert Readings in children proceedings. The guidance criticises the lack of clear rules that are in place for covert recordings on private individuals compared to public agencies.

What is a Covert Recording?

A covert recording is a video made without the knowledge or consent of those recorded. There is an absolute prohibition on covert recordings of court hearings, and parents will be in contempt of court under section 9 of the Contempt of Court Act 1981 if they make cover recordings. Outside of court however, a covert recording may be done in certain circumstances, either for legitimate or illegitimate reasons.

The recording can be for a legitimate reason. For example, local authorities are sometimes able to use covert recordings in relation to suspected harm. However, the guidance below focuses on covert recordings that are used for illegitimate reasons on private individuals.

The Risk of Covert Recordings

Covert recordings can appear attractive as parents may feel it is the only way to show a child’s behaviour. However, parents should be wary of taking this step, as this recording can have some negative consequences. The parent may be seen as abusive, controlling or even committing harassment. Alternatively, the covert recording may create secrets that can jeopardise the relationship with the child or affect the reputation of the family.

Despite these concerns, some parents may feel a covert recording is the only way to show the child’s behaviour. The most important question will then be: is the covert recording admissible in the court proceedings? Covert recordings are usually classed as hearsay evidence in court proceedings and as such as treated with careful consideration.

Will the Covert Recording be admissible?

The correct approach in deciding this question will be an issue for case management. It must be noted that any issues surrounding the covert recording should be identified at the earliest possible stage to reduce costs and manage the case effectively thereby adhering to the overriding objective of family proceedings.

Section 13(3) of the Children and Families Act 2014, states that permission of the court is needed to conduct a covert recording of a child. Therefore, a parent looking to rely on a covert recording in court proceedings should make a C2 application for the court to determine if the recording is admissible. As above, this application should be made at the earliest opportunity.

The Family Justice Council has provided the below guidance on what considerations the court take into account when deciding admissibility. As a first step, the C2 application should include:

• the nature of the recording: its context, details of any edits, along with the date and time of recording;
• the method of recording;
• an explanation as to why the recording was conducted covertly;
• the relevance of the issues: the recording should relate to the child’s welfare or link to the wider context of the proceedings;
• the probative value: is this evidence a true reflection of the matter?

If the court is satisfied with the above factors, the court will identify the authenticity of the recording. Important questions here will include:

• Is the quality of the recording adequate?
• Is the whole event recorded or only a partial clip?
• Is the recording an original?
• Can a transcript be prepared?
• Is the scope of the recording satisfactory, i.e. if there is more than recording, are they all relevant?

Lastly, the court will need to weigh up admissibility and value, against whether the recording was lawfully obtained. The recording must be for a legitimate interest, obtained in a way necessary to achieve that purpose, and the legitimate interest must override the individual’s interests. The Family Justice Council has detailed five factors the courts will consider in its decision:

1. promotion and protection of the welfare of the family;
2. rights of the child;
3. legal representation of the child;
4. if the child has been informed of the recording;
5. if evidence can be given by the child to corroborate the recording.

Only once the court has reached this last question will the court then consider whether to use its discretion to permit the covert recording as admissible. There is a high threshold to meet for admissibility in order to counter the risks of covert recordings. The guidance released by the Family Justice Council can provide clarity by setting out questions and tests that should be met before a covert recording is permitted.

If you have any queries regarding the use of covert recording in private children law, or any aspects of family law, then please contact a member of the Field Seymour Parkes Family & Matrimonial team.

Article contributor, Hannah Straw, Graduate Apprentice Solicitor