Nearly everyone in the world has access to a smart phone these days and the temptation to capture “solid evidence”, that is to say photos and voice recordings for evidence in court, is seen by many as hard hitting.

In family court proceedings, particularly with issues involving guardianship emotions, run very high and both parties – (the mother and father) - take things very personally and feel a heightened sensitivity throughout the process of the hearing. With each party feeling that they know what is best for their child, people can resort to drastic measures to get their point across, such as secretly recording their child in an attempt to prove that they are the better parent.

However, secret voice recordings, particularly those involving children, are generally frowned upon by the court. They seldom achieve the purpose that the person doing the recording set out to achieve. If anything, as an analysis of a recent UK case will show, it can backfire quite terribly leaving behind a trail of unforeseen adverse consequences.

M v F (Covert Recording of Children)

The opening sentence of this judgment delivered by Mr. Justice Peter Jackson sums up the Court’s view on using recordings as evidence – “It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence”.

Facts of the case

Explicit facts of the case were withheld in judgment for the protection of the child and her family. Roughly speaking, it was about a dispute regarding whether the child around 10 years old should continue to live with her father or move to live with her mother.

The situation between the mother and father had gotten so bad that the courts had to appoint a Children’s Guardian for the child, and over the course of proceedings, which ran for 18 months, there were many meetings with the child, her court appointed guardian, her social worker and a family support worker. The child’s father was resolute in his approach to find out what was being said in these meetings. In what could be described as desperation the father and his partner sewed recording bugs in the child’s clothing as well as used their smart phones to record conversations when the professionals mentioned above would come and visit their home.

Upon submitting the recordings as evidence to the court, the father and his partner both stressed that the child had no idea about the recording devices being sewed into her clothes.

What was troubling from the facts of the case was that the recording devices sewed into the child’s clothing were activated at the beginning of her school day as she would often have her meetings with the professionals straight after school. This meant that all her conversations with school friends and teachers and whomever else she came into contact with were recorded and downloaded at the end of the day by the child’s father.

The father’s reasoning

The child had expressed reluctance in living with her mother and her father wanted to know why this was, and thought that she would reveal more to the professionals than she would to him, which was why he wanted to record her conversations with them in the first place – to find out what was going on.

He claimed that he was protecting the child by doing this as, if she was being abused or mistreated in any way, then he would have the evidence to show that the child’s concerns were not being taken seriously by the professionals as they were not being acted on.

The recordings admitted as evidence

The Judge allowed the recordings to be admitted for several reasons. Firstly, because Counsel on behalf of the child said that the recordings were relevant and important when considering the child’s welfare. The recordings were not seen as unlawful because they fell within the ‘domestic purposes’ category. The mother did not oppose the admission of the recordings either.

Secondly, the Judge stated that he was - “in no doubt that the recordings were rightly admitted. The manner in which they were made is directly relevant to an assessment of the parenting offered by the father and his partner. They are so extensive that it would be unreal to exclude them, particularly after I had heard evidence from the father about their creation”.

Results

The Judge made the following orders regarding the child. That she was to live with her mother as he found that – “the father and his partner could not meet her emotional needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing, something she described as “really disturbing”.”

As the hearing progressed it was clear that even the father could see that he hadn’t thought this through. The fallout from his actions was soon made apparent when he realised that what he had done not only affected the child but her friends and entire social network, all of whom had been recorded by him through their interactions with her.

The Judge pointed out that the child would have to be told of the recordings gently and that the situation needed to be handled with extreme sensitivity. He further pointed out that because of this, the child would have issues trusting people and her relationship with her father would deteriorate as a consequence of his actions.

The Judge referred to this case as being a strong example of the difficulties that can arise by adults recording children for the purposes of litigation. The child’s mother described it as “unbelievable”.

Lessons from this case

It might appear that secretly recording conversations is a good idea in terms of providing concrete evidence in court. But it is not. We strongly advise that you do not do this and endorse the statements made in the above judgment.