The True Cost of Covert Recording of Children in Family Law Cases

Ian Whitbread, a Fellow of the Chartered Institute of Legal Executives in our family department, comments on the cost of covert recording in family law cases. The case of M v F (Covert Recording of Children) [2016] EWFC 29 concerned children proceedings where the court was asked to determine with which parent a child was to reside.During the course of the proceedings it was disclosed by the father that he and his partner had been making covert recordings of his daughter whilst she was at school, during contact with the mother and during meetings with social workers and the Guardian. The recordings had been obtained through a ‘bug’ sewn into the child’s school uniform and other electronic devices. The court was asked to consider whether the transcripts of the recordings of this bug should be admitted into evidence. It was held that the transcripts could be admitted.

Whilst it is almost always likely to be wrong for a recording device to be placed on a child for the purpose of evidence gathering; by not admitting the recordings the court was concerned there would potentially be a risk that the evidence would be unbalanced. Given the recordings had been made known and the possibility the contents of the recordings were to be of value the court agreed to admit the recordings. The reality was that the recordings did not provide any useful information. Admitting the transcripts to evidence caused an increase in both the length and cost of the proceedings, resulting in the father being ordered to pay part of the mother’s legal costs. Notwithstanding this, the court found that the manner in which the recordings were made was directly relevant to the assessment of the parenting which was offered by the father and his partner. The court concluded that the father and his partner were unable to meet the child’s emotional needs as main carers. The recordings had damaged the relationship between all parties and showed that the father was unable to trust professionals. The court concluded the child should reside with the mother. This case highlights the risk of seeking to rely on and submitting such evidence and the potential adverse findings that could be made as a result.

If you would like Ian to assist you in proceedings concerning children please contact him by phone or email; direct line: 020 8885 7978 email: i.whitbread@wilsonllp.co.uk