So you want to secretly record your child to gather evidence?

Naomi Hayward

Partner & Collaborative Lawyer

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June 15, 2016

Categories Family Law

How far is too far?

With technology being an ever increasing part of our everyday lives, I’ve lost count of the number of clients who have given me evidence they have obtained from social media, mobile phones, iPads and tablets, etc, to use within their court proceedings.

But can technology ever be taken too far when trying to put together your case at court?

The recent case M v F (Covert Recording of Children) [2016] EWFC 29 highlights one such step too far.  This case involved a dispute about which parent the child, Tara, should live with.  Tara lived with her father and her mother sought an order that she live with her instead.

In an effort to support his case that Tara should continue living with him, Tara’s father made secret recordings of her discussions at school, discussions with her mother and also whilst she spoke to the relevant authorities in this case.  His reasoning for this was that she might be saying things to them that she did not feel she could say to him, such as why she was reluctant to see her other parent.  He then relied on transcripts of these recordings in the proceedings.

To obtain the recordings Tara’s father and his partner sewed recording devices (bugs) into Tara’s clothing.  They also recorded conversations on their own iPhones and iPads when discussions were had with the authorities.  They stated that Tara had never been aware that she was being recorded.

Taking their behaviour into account, the Judge found that the father and his partner could not meet Tara’s emotional needs as main carers and the secret recordings amounted to a “prominent” factor taken into account by the Judge when making his decision, albeit not the only factor.

The Judge therefore made an order for Tara to live with her mother and explained that “the mother was entitled to say she objected to her daughter being brought up by someone who sewed recording devices into her clothing”.

So the father lost his case to remain Tara’s main carer.  That’s punishment enough isn’t it?  Well not according to the Judge who went on in his judgment to highlight the impact the recordings and transcripts had had on the proceedings as a whole:

1. The transcripts amounted to hundreds of pages of documents which increased the length and cost of the proceedings and yet “did not produce a single piece of useful information”.  The Judge noted that not only did the father pay £1,500 to have the recordings transcribed but the mother’s legal costs were increased by £9,240 for having to deal with them in the proceedings.

2. Instead the result was to “damage relationships between the adults in Tara’s life”, it showed the father to be someone that couldn’t trust professionals and it “created a secret that may well affect Tara’s relationship with her father and step-mother”.

3. The Judge found that Tara was at risk of emotional harm as a result of finding out about the recordings which could cause her “confusion or distress and seriously affect her ability to trust people”.

4. The Judge said there could be further consequences as a result of the other parents at the school finding out about the recordings.

So with this in mind the Judge made a further order for the father to pay the mother’s legal costs for the time spent on the secret recordings – paying £9,240 in addition to his own costs.

The Judge said: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” and “anyone who is considering doing something similar should therefore first think carefully about the consequences”.

So whether you have found yourself in the midst of financial remedy proceedings as a result of a divorce or children proceedings to regulate the arrangements for your children as a result of your separation from your child’s other parent, be very careful and seek legal advice before you take steps to use technology to support your case.

For further information speak to Naomi Hayward on 01227 763939.