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The Risks of Covert Recording of a Child to Gather Evidence

Mr Justice Jackson has held, in a very recent case, that it is almost always wrong for a recording device to  be placed on a child to gather evidence in family proceedings, whether the child is aware of it or not.

The dispute was as to whether the child should continue to live with her father and his partner, or to move to live with her mother. The dispute was bitter and a Guardian was appointed to represent the child’s interests, and the Local Authority (LA) were also involved. The father disclosed that he had been placing recording devices upon his daughter’s clothing in order to find out what she was saying at meetings with the Local Authority and the Guardian.

 

He claimed to be motivated by trying to protect his daughter and to find out about ‘abuse’ and to hear what the child might say to the professionals which he suspected was not being acted upon. He had previously carried out surveillance upon his ex-partner.

The devices were sewn into the child’s clothing, bags, and a microphone pinned into her clothes. Other conversations were recorded on the father’s IPhone. The child was unaware. The father then produced hundreds of pages of transcripts of those he and his partner felt to be relevant. There were many more that were not transcribed.

 

The Judge ruled that in this case the recordings should be admitted, although Counsel for the mother objected on the grounds of public policy, in that this type of behaviour should be discouraged, although submitted the evidence was not unlawful, and neither was it a breach of the Data Protection Act 1998, falling within the exemption for domestic purposes.

 

The Judge ruled that the evidence should be admitted so that the possible relevance of these to the child’s welfare could be considered. The Judge further held that they were rightly admitted as the manner in which the recordings were made was directly relevant to the assessment of the parenting offered by the father and his partner.

He commented that it ‘was a striking example of the acute difficulties that can be caused by adults recording children for the purposes of litigation’. Whilst all other adults realised immediately on discovery that the recordings were intrinsically wrong, the father failed to do so. There was also the troubling issue of whether the child should be told of her father’s actions and if so how.

 

As a result the Judge changed the residence of the child to the mother. He held that the father and his partner could not meet the emotional needs of the child, and that the recordings were a major indicator of this.

The issue of the recordings had other serious impacts to include the effect upon the relationship between the child and her father, as well as between all the adults in the child’s life. It also illustrated the father’s failure to trust in the professionals involved.

Additionally it greatly increased the costs in this case, and the father not only had to pay the costs of transcription, but a proportion of the mother’s costs attributable to time spent on the recordings.

The Judge warned others thinking of doing anything similar to think very carefully about the consequences.

 

In cases concerning children, many feel tempted to do just that in order to provide ‘evidence’ of what they believe is happening, for example a child’s reluctance or upset at seeing an absent parent, or returning home. Additionally many feel tempted to question a child about the other parent, and think that a recording will assist. The courts have always been very disapproving of this strategy and generally refuse to hear it.

It is vital to take early legal advice on any issues relating to family and children. We can assist by providing you with tailored expert advice.

Contact Janice Leyland on  01643 7077777.