An increasing area for disputes during family separation is about what was said and how things went during contact, especially during the handovers of children from one parent to another. Secretly recording what occurs during that time can be viewed as an invasion of privacy and trust between parents and family members; however some are of the opinion that there are possible benefits of recording conversations and events covertly.
There can be legitimate reasons for recordings to be made in Children Act proceedings. These can include:
– A parent not wanting to rely on memory of events such as a meeting or contact visit.
– A recording of events as evidence is a record of the other parent’s behaviour and that of the children during a contact handover. This information can be vital where it is alleged that the children are not happy to go for contact with another parent or where there are allegations of abusive behaviour by a parent.
CAFCASS have stated in its Operating Framework document, in relation to covert recording of a parent’s conversation with CAFCASS that:
“We have nothing to fear from covert re cording. Our attitude should be “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts”
CAFCASS have also identified recording that practitioners may be asked to watch or hear. These include: a recording of a contact session with a child without the other party’s knowledge or the consent of the Court and a recording of a telephone conversation with the other party or another person. CAFCASS guidance for practitioners in this position gives several considerations that should be taken into account including:
– There is a possibility that records may not be authentic, accurate or complete;
– In accepting the recording, the practitioner may appear to be influenced by one party over another;
– Once the practitioner has seen/head the recording, it must be provided to the parties and the court, if it is relied upon.
CAFCASS guidance further states that if a practitioner is offered such material, they need to be aware that whether it is admitted into evidence will be a decision of the court and there may be issues raised by other parties about the validity of the material. The guidance recognises that while it may be appropriate to read/listen to the recordings the practitioner should decline to accept it until the recording has been brought to the attention of the court and the court’s decisions have been obtained. To see a full copy of the Operating Framework and guidance click here: https://www.cafcass.gov.uk/media/212819/cafcass_operating_framework.pdf
The main statute in relation to cover recording is the Data Protection Act 1998. However, this does not prohibit covert recordings for personal or family use (section 36 of the Data Protection Act).
Possible problems with covert recording is that the child may discover that they are being recorded and ask why, if a child discovers that they are being recorded they may find this distressing and by angry and upset by it. Another difficulty is that covert recording is likely to result in resentment and damage to relationships between the parents from loss of trust. Covert recording is often regarded as an infringement of privacy at a personal level, regardless of legal principles. The Court’s attitude towards covert recording varies enormously and there have been cases which indicate that the fact of recording, either covertly or overtly, at handovers or family arrangements is capable of attracting a non-molestation order where it amounts to harassment (Re C (a child)  EWCA 1096).
In conclusion, parents who covertly record events such as conversations with professionals, during contact handovers or contact itself, are not necessarily contravening any statute or rule of law. Many factual disputes between parents are about children’s attitudes towards contact handovers and contact itself. Provided that there is no risk of significant harm to a child in covertly recording and the recording is made for the purpose of providing proof of the truth, there is a good argument in favour of such recording where necessary, especially as in any event the court would control the subsequent use of such recordings.