Navigating the Legal Landscape of Covert Recordings in Family Proceedings in England and Wales

Navigating the Legal Landscape of Covert Recordings in Family Proceedings in England and Wales 

 

In an age where technology allows anyone with a mobile device to covertly record conversations, the use of such recordings in family proceedings is a growing concern in England and Wales. While the law permits the admission of covert recordings as evidence under certain conditions, the courts exercise caution and view them with suspicion. 

 

To rely on covert recordings in family proceedings, individuals must obtain court permission, demonstrating that the recordings are of value, reliable, and relevant. Despite seemingly providing a glimpse into the reality of a situation, these recordings are treated with scepticism by judges due to the potential for manipulation and the perception of attempts to control or intimidate. 

 

Specialist advice is crucial in these situations, and several key considerations should be taken into account: 

 

Recording Integrity: The court expects recordings to represent the entire conversation, discouraging the cherry-picking of specific snippets. Courts may request the full version if a recording is found to be part of a longer conversation, potentially leading to unintended consequences. 

 

Disclosure Risk: Applying for the admission of a recording may require disclosure of all other recordings in possession. Parties must carefully weigh this risk before seeking to rely on a recording, as unhelpful material may come to light. 

 

Recordings of Children: Recording children is generally frowned upon by the courts, with potential consequences for the parent making the recording. Judges emphasise the need for parents to consider the impact on the child and note cases where such recordings have backfired. 

 

Recordings of Adults: While less severely scrutinised, covert recordings of adults are also viewed negatively by the courts. Seeking approval or taking notes is advised to avoid potential legal consequences. 

 

Financial Implications: If a covert recording is admitted into evidence, the court may require a professional transcript, with associated costs borne by the party introducing the recording. This includes legal team fees for reviewing the recordings and potential costs for the other party in case of an unsuccessful application. 

 

Possibility of Delay: Covert recordings may lead to adjournments, causing significant delays in proceedings. The court may order time for proper consideration of recordings, as highlighted in specific cases. 

 

Considering the complexity of relying on covert recordings, the Family Justice Council (FJC) has issued draft guidance outlining important case management considerations and precedents. The guidance emphasises that professionals should not listen to or view covert recordings until the court determines their admissibility. 

 

In conclusion, seeking to use covert recordings in family proceedings requires careful consideration of potential consequences. With technology advancing, the legal landscape is evolving, making it essential for individuals to seek specialist legal advice early in the process. The draft guidance provided by the FJC serves as a valuable resource for navigating the complexities surrounding the legality and admissibility of covert recordings in family proceedings in England and Wales. 

 

Get in touch with us today if you require assistance in the Family Court.