The widespread availability of advanced technology can bring a new dimension to family court proceedings. In the past, the covert recording of conversations was solely the pursuit of spies and private investigators; today it is available to anyone with a smart phone, and small recording devices can be purchased on the internet for just a few pounds. As a result, family lawyers are increasingly receiving recorded 'evidence' produced by their client - or the other party involved - in order to support their case and 'prove' their version of events to be the truth. As the recent case of M v F (Covert Recording of Children)  EWFC 29 (16 May 2016) shows, the consequences of this can be serious.
This case surrounded the question of whether a young child should remain living with her father and his partner, or live with her mother. Various public bodies and child focussed professionals were involved in the proceedings and the child's father and his partner were determined to find out what the child was saying at meetings with these bodies, so they decided to record them. On a day when his daughter was to attend such a meeting, the father and his partner would sew at least one recording device into her school clothing. The recordings would run all day, such that the child's every conversation and activity was recorded - be they during class at school, in the playground, at home, or during meetings with social workers.
In Court, the father produced selected transcripts from the recordings, which took place between November 2014 and March 2016 and ran to over 100 pages. The child's mother described the revelation of the recordings as "unbelievable". Indeed, Mr Justice Jackson found that almost everyone in the Court, save for the father and his partner, immediately recognised that such recording of a child was wrong. Despite this, the recordings were admitted as evidence on the basis that the manner in which they were obtained was directly relevant to the requisite assessment of the father and his partner's ability to adequately parent the young girl.
Mr Justice Peter Jackson began his judgement: "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", before deciding that the child should live with her mother. "The main reason for changing [the child's] home base [from father to mother] was the conclusion that the father and his partner could not meet her emotional needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing…"
While the judgment did not discuss the potential criminality of the father's acts, or comment as to the position of such recordings in relation to adults in family proceedings, it serves as a stark warning to those who may consider undertaking covert surveillance before, during, or following a relationship breakdown or proceedings involving children. For the majority of people, such action would be inconceivable, or at least rejected as an idea, regardless how desperate they were for 'evidence'. Such covert recordings will often, as in this case, involve many third parties, including numerous children, being recorded without their knowledge. As a general rule, unilateral covert recordings in family proceedings are rarely a good idea. As the Judge summarised in this case, "experience suggests that such activities normally say more about the recorder that the recorded".