When it feels like no one is listening or believes you about what is happening at home, it is enormously tempting to reach for the smartphone in your pocket and press record.
There is no law against recording things taking place in your private life, but what you do with those recordings may land you in trouble, and you need to be careful about how you deal with those recordings when there are proceedings in court. They can just as often work against you as help you.
This is becoming more of a hot topic and one family solicitors are increasingly asked about by clients on both sides of the debate – ‘what can I do if I think I’m being recorded without my permission?’, and ‘can I record what my partner is doing to prove they’re lying in court?’
Everyone has a smartphone these days, and it is not difficult to buy cheap devices off the internet to record audio or video. It might simply be a case of something caught on a security camera already installed at home. How can this be balanced with the right to privacy and the strict requirements of the court for the evidence which is put before it?
First thing in the new year, this was the subject of a debate by the Family Justice Council (FJC). The consensus between the attendees was that openly recording interaction with a professional who may be involved in your case, like a social worker or a Cafcass officer, should be acceptable. Like the lawyers and judges who are always on record in the courtroom, there should be no objection when acting in a professional capacity.
The far more tricky issue is when the parties are recording each other or even using the child going between them as a mobile recording device.
Recent cases show that such recording can be vindicated, as in the case where a video of one parent’s aggressive outbursts towards the child in question was denied hotly by the parent and undetected by the professionals involved. The video evidence was the only way to prove this to the judge. It affected the outcome where no other evidence could.
In other cases, it has backfired entirely. In one, the recording parent was found to be harassing, and injunctions were put in place to protect the parent and child from the recording parent. In another, the father who secretly sewed recording devices into his child’s clothes lost residence of the child, largely because of these actions, and was subject to a £10,000 costs order for the wasted time spent in dealing with the recordings. This judgment came with the warning from the judge that it is ‘almost always likely to be wrong’ to use a child to record events.
The speakers at the FJC debate, all experts in family law, generally agreed that the fundamental problem which covert recordings is a symptom of, is a breakdown of trust, whether between the parents, or between a parent and the court process.
They concluded that formal guidance is needed to help the courts and lawyers deal with this increasing normal issue. This guidance may be forthcoming, but practically, answering the question of whether it is a good idea to use recordings will be fact specific and depend entirely on the relevant factors of your case.
If you want advice about recordings you have made, or recordings which have been made of you then please contact our family law specialists.