Covert Operations

As practitioners, we are often asked whether a parent can or should make recordings of conversations with the other party or even the child in the context of an ongoing dispute over arrangements for their child. The motives for a parent wanting to make the recording can vary, but it usually is because they want to show how the other party speaks to them (or the child) at handovers or on the phone. Parents say that they want to use it as evidence either for the lawyer or in court proceedings for the benefit of the Judge or Cafcass.

Is it against the law to make secret or covert recordings?

The principle statute is the Data Protection Act 1998. At section 36 it states:

“Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.”

A recording made for personal use including any family court purposes comes within this exemption. But, in order to use the recording in a court case, the court must give permission.

Is it a breach of human rights, under Article 8?

The right to privacy in respect of family life is not itself breached by such a recording. But what the person does with the recording, may give rise to a breach.

If the recording is used only in court proceedings or for personal use, then there would probably be no breach of Article 8. Court proceedings in children cases are private and therefore if the court entertains an application for such evidence to be used, it must remain private within the proceedings.

Practical considerations

There are practical issues arising from secretly recording children in such cases. The temptation of the person making the recording to ask leading questions ‘for the tape’ can render the recording of no real evidential value.

If the child sees that a recording is being made, it can lead to difficult questions and no doubt if the other party found out then any trust that existed between the parties will be damaged.

What happens in court?

Any recording must be relevant to the case at hand. In the case of Re C (a child) [2015] EWCA 1096 overt and covert recording was not permitted, because the court deemed it to have amounted to intimidation. In that case, the recordings were considered to be sufficient to warrant a non-molestation against the father to prevent him from making any future recordings of the child or mother.

In H v Dent [2015] EWHC 2090 covert recordings were allowed in the context of recordings made of conversations with Cafcass.

Rules of evidence

The court controls the evidence it needs to help it determine cases. Rule 22.1 of the Family Procedure Rules 2010 provides for the nature of and way in which evidence is admissible.

Top tips:

  1. A recording must be genuine, and should not be edited.
  2. Can you prove that the person on the tape is the real thing?
  3. Check that there are no prohibitions on recording in the chosen place or building
  4. Ensure that the recording is relevant to the issues in the case
  5. Make sure that the sound is clear
  6. Make a transcript for the parties and the court
  7. Do not publish or otherwise circulate the recording – it must remain private

If you follow the correct procedure and act properly in making a recording of a handover or conversation, then it seems that secret recordings can be good evidence and do not on the face of it contravene any laws or rules.

But whilst secret recordings may technically and legally be allowed, that does not always mean that they are necessarily a good idea. Before making any recording it is always good advice to speak to your solicitor to ensure that your plans are going to help in your particular circumstances.

Contact Us

For more details on this or any other family law matter, please do not hesitate to contact James or Frank. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 0845 6020422 or email us to [email protected]. You can also follow us on twitter and LinkedIn and Facebook for the latest news and views on family law.