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Posted 13 November 2019
by Tracy Lambert

Is that a camera? The law on covert recordings in family law

Camera and laptop

There are many instances in which we choose to digitally record our daily moments without giving it a second thought. However, recording others without their explicit permission could potentially land you in hot water.

It is easy to see why someone would choose to make such a recording; it can be used later on as almost unequivocal proof that something happened as it was reported. This can of course be extremely valuable, particularly for those in vulnerable situations who may wish to have proof of their exposure to coercive behaviour or other types of abuse.

What is the law?

As a general rule, it is not against the law to record another without their permission. For example, the Regulation of Investigatory Powers Act 2000 details that it is not illegal for individuals to tape conversations provided the recording is for their own use.

However, can it be used in a legal setting? Specifically, can covert recordings be used in family proceedings? With smartphones and other technology making it easier to make recordings, it is important to consider the law in this area.

In family law, the rules concerning the admissibility of such evidence have been criticised for their uncertainty, despite the increasing rise of covert recordings being made by those who wish to collect evidence to help their case.

Whilst there is no specific law prohibiting private individuals from making recordings, rule 22.1 of the Family Procedure Rules 2010 gives the Court the power to control evidence. Under this rule the Court may:

  • Exclude evidence that would otherwise be admissible; and
  • Permit a party to present evidence, or seek to rely on a document, in respect of which that party has failed to comply with the requirements of part 22 of the Family Procedure Rules.

Accordingly, under rule 22.1 the Court could prevent a party from relying on covert recordings they have made as evidence.

The approach taken by the Court has been explored in a number of cases:

  • In relation to evidence obtained as a result of extensive covert recording of a child, the Judge decided that a Court will take an extremely dim view of a party who covertly records a child for the purposes of gathering evidence. The Judge found that the covert recording of a child will almost always be wrong and anyone considering taking such a step should think very carefully about the consequences, both for the child and any proceedings. Such evidence might be admitted (in this instance it was, due to the sheer volume of recordings) but how the evidence was obtained would be relevant to an assessment of the care that would be provided to the child by the parent who made the recordings.
  • Recording of co-parents: A father (F) had recorded an argument with the mother (M) at handover. M made an application for an injunction without notice to F. having considered the recording, the Judge made an order preventing F from making further recordings when he met with M as he considered such actions amounted to intimidation. F appealed which was eventually refused by the Court of Appeal.
  • Recording of social workers: The father (F) argued that mother (M) was alienating their daughter. F had recorded conversations over the years with third parties, including social workers and Cafcass. At first instance, the Judge decided little weight should be attached to the recordings. The Judge made two orders, the second being publishing of his judgment. F appealed. On consideration of the appeal, the then President of the Family Division, Sir Munby, sitting in the Court of Appeal, made the following important points:
    • It was important to distinguish between open and covert recordings, the latter being problematic.
    • It was important to identify who was making the recording and why.

Parties should be very cautious when considering making covert recordings. How these recordings are made can be almost as important as what is contained in them. It is clear that the Courts will consider a number of factors when deciding whether to exercise discretion to allow these recordings to be entered as evidence, including the way in which the recording has been obtained, who the recording is of and whether the recorder has been selective in what they have made/provided.

There may be circumstances when covert recordings are justifiable, however it will always be wise to seek legal advice before making such recordings and to consider whether the information you are seeking to obtain through recording can be obtained in other ways.

For further advice, please contact our family law specialists on 01392 207020.

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About the author

Tracy Lambert

Partner and Solicitor

Partner based in Exeter's family team