In family law, particularly under the Children Act 1989, the use of covert recordings has become a topic of significant interest and debate. This is only going to increase as technology advances and becomes increasingly accessible to parents.
The Family Justice Council has released comprehensive guidance on the use of covert recordings in family law proceedings concerning children. This guidance addresses the growing trend of individuals using covert recordings as evidence in family courts, due to the advance of technology. Here, we summarise the key points and recommendations from the guidance, which aims to provide clarity and consistency in handling such recordings.
Understanding Covert Recordings
Covert recordings are those made without the knowledge or consent of the individuals being recorded, whether through audio or video means. The guidance highlights the potential evidential value of such recordings but also warns of the significant privacy intrusions they can cause, particularly to children and professionals involved in family proceedings.
Legal Framework and Considerations
The guidance outlines the legal framework governing covert recordings, noting that while public agencies are subject to strict regulations under the Regulation of Investigatory Powers Act 2000, private individuals operate under less clear constraints. The guidance emphasises the importance of considering the welfare of the child, the right to privacy, and the rules of evidence when determining the admissibility of covert recordings.
Under the Children Act 1989, the welfare of the child is the paramount consideration in any court proceedings. The Act does not explicitly address the use of covert recordings, leaving it to the discretion of the courts to determine their admissibility.
Recommendations for Case Management
The Family Justice Council recommends that courts engage in focused case management to determine the admissibility and probative value of covert recordings. This includes establishing the authenticity of the recordings, their relevance to the issues in dispute, and the potential impact on the welfare of the child . The guidance also advises that any application to admit such recordings should be made early in the proceedings to avoid unnecessary delays and costs.
Impact on Children
The guidance strongly advises against the covert recording of children, highlighting the potential harm to their welfare and the breach of trust it represents . It notes that the evidential value of such recordings is often outweighed by the negative impact on the child’s emotional wellbeing. The guidance also stresses the importance of considering whether the child should be informed about the recording and whether they need to give evidence.
Further, covert recordings can exacerbate tensions between parties, which would have a knock on effect on the welfare of the child by increasing conflict between the parents.
Professional Conduct and Policies
The guidance encourages professional bodies within the family justice system to develop clear policies on both covert and overt recordings. This is aimed at reducing the perceived need for covert recordings by promoting transparency and trust between professionals and the families they serve. The guidance suggests that overt recordings, with consent, can be a constructive alternative, provided they are managed in accordance with data protection laws.
Conclusion
The Family Justice Council’s guidance on covert recordings in family law proceedings provides essential insights and recommendations for handling such evidence. It highlights the need for careful consideration of the legal, ethical, and welfare implications of using covert recordings, particularly when children are involved. By promoting best practices and encouraging the development of clear policies, the guidance aims to ensure that the use of covert recordings in family courts is both fair and consistent.
For more detailed information, individuals are encouraged to refer to the full guidance document provided by the Family Justice Council.