Can voice recordings be used in Court?

Posted by Seona Myerscough, Children’s Lawyer, Partner and Head of the Family Team

09-11-2017

Are you fighting over the arrangements for your children and do you ever think about recording on your phone what the children say to you about the other parent or recording what the other parent says to you?

Sadly if you are in conflict with the other parent about your children then you might find yourselves in court.

I am very strongly of the view that you should do everything you can to avoid court hearings about the children. It is not a good process for the welfare of your family. You should seek advice from a solicitor, you should consider mediation and you should try to compromise.

But sometimes even the most reasonable people can find that they have no alternative but to be in court. Two reasonable people can find that they just don’t agree, or, you are reasonable but the other person is not.

Let us assume that you have a court hearing coming up which is going to decide the arrangements for your children. You could either be representing yourself or instructing a solicitor.

You might think that if you record the children or the other parent then it will help you in court. You can prove to everyone what is happening, and the Judge will hear what is really happening.

It is a common request. This very issue has been recently considered by the President of the Family Division, Sir James Munby and he has invited the Family Justice Council to provide guidance on this difficult subject. It is not clear when the Guidance will become available.

However, from my experience acting for parents and acting for children I would like to express some personal opinions that you might find helpful.

  1. Think very carefully before you start making recordings of children. It is very rare that a court will consider that these recordings are reliable and relevant. Instead what the court may well think is that you making the recording is itself a cause for concern. In other words it is likely to back fire. My strong advice is NOT to record your children.
  2. If you record the other parent then the court will only allow the recording to be used if it is reliable and relevant. This can be difficult to establish. The recording has to be a good recording and there would need to be a transcript made of the meeting. The making of a transcript can be quite expensive. You will need to prove to the court that this really is useful to your case.
  3. If you make recordings of professionals, there are a lot more reasons why this might have been done. However, it is best to say you are going to record the meeting rather than being secretive. The same principles apply as to reliability and relevance.

My advice is that you are considering using or making recordings then speak to your solicitor. It is not that they cannot be used, but I have only been involved in one case where the recordings were considered helpful. In other cases the court has not allowed the use of the recording, or the recording has made things worse.

If you don’t have a solicitor, think very carefully before you decide that you want to make or produce recordings to the court.

I will update you when the Guidance from the Family Justice Council becomes available.


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