Payne Hicks Beach

Payne Hicks Beach

19 August 2021

You’ve been framed…

Making recordings, openly or covertly, is a highly sensitive and topical issue. The scandalous clinch between Matt Hancock and his aide caught by a hidden camera led to his political demise and has called into question the ethics of covert recordings, as well as other fundamental issues relating to security.

In today’s world, people are constantly capturing their everyday lives on camera: people take photos of their loved ones on their smartphones, cyclists capture potential traffic breaches with a camera on their helmets or, at the other extreme, investigative journalists capture breaking news with their hidden cameras à la Hancock.

Because of the ease with which individuals can now make recordings, they have also become much more prevalent within family proceedings. The Family Courts are frequently asked to admit as evidence recordings of third parties to support one party’s positon or undermine the other’s. In this context, there are two questions to consider: are covert recordings legal and, if so, are they admissible in proceedings?

Legality

This is a specialist area of law, but it is worth bearing in mind that a recording private conversations has the potential of being unlawful and exposing you to a claim. Data protection laws, and breach of confidence may apply and you are likely to engage the right to a private life under Article 8 of the European Convention on Human Rights (“ECHR”), as enshrined in UK law by the Human Rights Act 1998.

Under the Data Protection Act 2018 (which implemented the EU General Data Protection Regulation), personal data processed by an individual purely for the purposes of that individual’s personal or household affairs, with no connection to a professional or commercial activity, are exempt from the data protection principles. That said, however, the routine recording of private conversations without consent solely for the purposes of gaining advantage in court proceedings, even in an exclusively domestic context, may well still give rise to questions of liability under the Data Protection Act 2018.

The maker of the recording also runs some risk of liability for misuse of private information where, depending on the circumstances of the case, the individual being recorded has a “reasonable expectation of privacy”, or alternatively where it can be shown there has been a breach of confidence. Whilst each case will depend on its own facts, it may be an uphill battle to pursue a claim in either misuse of private information or breach of confidence in circumstances where the recording is used exclusively for the purposes of family court proceedings, and is not otherwise disseminated to the public.

The law in this area is complex and it is highly recommended that specialist advice is sought before seeking to make use of any private recordings. Nevertheless, civil liability for the recordings does not in and of itself prevent the recordings from being admitted by the court as evidence.

Admissibility

There is no general rule that private conversations that have been recorded in a covert manner are inadmissible as evidence in court proceedings. As a public body, however, the court is required to consider the Article 8 ECHR rights of the parties when it comes to determining whether to admit such a recording as evidence into the proceedings.

Under the Family Procedure Rules, rule 22.1, the Court has the power to control the nature of the evidence. The Court can therefore use its powers to exclude evidence that would otherwise be admissible. It is therefore within the Court’s powers to decide whether it will allow covert recordings. Consequently, the approach taken by the judiciary varies as there is little authority and no adequate guidance on the subject. The Court will decide each case based on the specific facts involved.

The issue has been considered in a number of cases as follows:

Re C (a child) [2015] EWCA 1096

This was a case in which the father frequently filmed his daughter and the mother in the context of a handover. The father was also editing some of the recordings. He was found to have asked leading and suggestive questions of his daughter. The mother therefore applied for a non-molestation order to prevent the father from undertaking further recordings and was successful as the recordings amounted to intimidation. The father appealed this decision and, whilst the appeal was initially granted, it was then refused by the Court of Appeal.

This case highlights the risks of covert recordings, particularly where children are concerned, as the Court considered that the father was more focussed on obtaining evidence to discredit the mother than protecting the child from any types of behaviour he was trying to prove. So, his use of covert recordings undermined his case.

MvF (covert recording of children) [2016] EWFC 29

In this case, there was a dispute as to whom the daughter should live with. The father and his partner had sewn numerous recording devices into his daughter’s clothing. This meant that all of his daughter’s interactions with third parties were recorded. The Judge found that the recordings should be admitted as they were so extensive “it would be unreal to exclude them”. However, the recordings were once again a hindrance to the father’s case as the Judge concluded that the manner in which the recordings were taken showed that the father could not meet his daughter’s emotional needs. He therefore ordered that the daughter be moved from her father’s care to live with her mother.

It is noteworthy that Mr Justice Peter Jackson began his judgment by saying: “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, whether or not the child is aware of its presence."

Re B ( a child) [2017] EWCA Civ 1579

In this case, the father argued that the mother was alienating the child and had made recordings in support of his case. The father had recorded conversations with third parties such as social workers and Cafcass. The matter went to the Court of Appeal, as the Judge intended to publish the judgment which the father was against. On that aspect of the appeal, the father was successful.

In the Court of Appeal judgment, the Judge made the following important points:

  1. It was important to distinguish between open and covert recordings, the latter of which was problematic.
  2. It was important to identify who was making the recording and why.

Variables in recordings

The approach of the Court is likely to differ depending on who is the subject matter of the recording. The recording of a child is more likely to be frowned upon, as was the case in M v F referred to above, a position which is supported by the Association of Lawyers for Children. However, the recording of professional bodies is a different kettle of fish altogether, as they can be of evidential value.

There are times when recording a professional will be appropriate, perhaps because the individual concerned has difficulties understanding what is being said or written. There are also those who would want to record a meeting with a professional out of fear they will be misquoted as was the case in Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149. In this case the mother had been misquoted considerably by the psychologist and was able to prove it by virtue of her recording. Here the judge stated that “the overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable.”

Helpfully, Cafcass (the Children and Family Court Advisory and Support Service who meet with children and parents and report to the judge) state in their operating framework that they should have nothing to fear from covert recordings because they are doing their job and have nothing to hide and should be able to explain what they said or did.

Conclusions and practical tips

The Transparency Project, an organisation which aims to promote the transparency of Family Court proceedings in England and Wales published some helpful guidance in December 2015 about recording conversations between parents and social workers. However, their guidance does not apply to the recording of children, on which there remains little guidance.

In light of this, before seeking the Court’s permission to rely on recorded evidence, individuals ought to consider the following factors:

  • Why is it relevant for the Court to see or hear the evidence?
  • Under what circumstances was the recording made and for what purpose?
  • Is the recording complete or has it been edited?
  • Are there any issues regarding its authenticity?
  • Does the recording say more about the one recording it than the content of the recording i.e. can adverse inferences be drawn?

Recordings undertaken on a covert basis are becoming a more prominent feature of family law proceedings and, inevitably, there will be certain cases where their value is significant and the circumstances in which they are taken are appropriate. However, they should be treated with caution as these types of recordings can raise difficult issues on which there is little direction. Clients should therefore be given a serious health warning before they proceed with this measure as past cases have shown the extent to which they can backfire on the person seeking to rely upon them. Proceed at your peril…

For more information, please contact Emilie Helm, a Senior Associate in the Family department at Payne Hicks Beach by email or telephone on 020 7465 4300

Emilie is a specialist family lawyer who is a dual French and English national and can provide advice in both languages. She is part of the firm's top ranked Family department that focuses on providing specialist advice on all areas of family law, including children arrangementsdivorce, cohabitation, civil partnerships, financial provisioninheritance claims and pre and post-nuptial agreements. The team works for a variety of high net worth and ultra high net worth clients on both contentious and non-contentious matters, including those with a complex international angle. Clients highly value its exceptional level of service, astute financial acumen and unparalleled levels of support and is recognised across the industry as one of the best family teams in the UK.

People reading this article have also found the following of interest https://www.phb.co.uk/legal-updates/the-domestic-abuse-bill

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