Associate solicitor Peter Hilton, in our Family Law team, answers the question.
Covert recordings made by parties in cases of divorce, separation or disputes over children are becoming increasingly commonplace. Whilst parties may often be tempted to make such recordings in the belief they will show the other parties’ wrongdoing, there is a big question as to whether they can be relied upon as evidence in Family Court proceedings.
It is increasingly easy for parties to record one another with almost all of us possessing a mobile phone with those capabilities. However, from an evidential standpoint, whilst the recording party may feel justified in doing so there are significant moral and evidential considerations. The relevance of such recordings in large part rests with the nature of the dispute. Recordings are generally unlikely to be relevant to financial proceedings or the divorce under the new ‘no fault’ system. However in more circumstance driven areas of dispute, such as children proceedings involving allegations of domestic abuse, recordings may at first glance appear to be a valuable tool in assessing the truth of a matter.
Previously, the approach on case law had been to take any recordings with a heavy pinch of salt. After all, how reliable is a partial recording of a conversation where one party is not aware they are being recorded? However, this left a considerable deficit in how recordings were to be treated in terms of admissibility. This point was then considered closely by the Family Justice Counsel (FJC) who issued guidance on the use of covert recordings, including their legality and admissibility. Many parties are often surprised to learn that recordings will not be automatically admissible or considered by the Courts. Under the FJC guidance:
- Material should not be listened to or viewed in a court setting until the court has determined whether to admit the material in evidence;
- Whether the Court will then make a direction to allow the evidence to be heard depends on:
- The method of disclosing the recordings to the other parties, including whether transcripts are required;
- The scope of the recordings, how they arose, and which recordings should be considered, if any;
- The authenticity of the recordings if that is disputed or there is evidence of editing;
- Whether the recordings are likely to offer any clarity to issues in dispute;
- Implications for the welfare of any party including the children of the marriage;
- Costs and whether a separate hearing may be needed to deal with this bespoke issue.
In addition, in cases where children are recorded expressing their wishes and feelings, the guidance is clear that this may present a serious risk of harm to the child. Indeed, the guidance suggests the recording party’s surveillance of the child may in fact be more indicative of that parent’s inability to recognise their child’s welfare needs.
Before attempting to rely on recordings and in considering whether they are necessary and proportionate, legal advice should always be taken to ensure any genuine evidence can be properly admitted to the proceedings.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
