The President Of The Family Division has called on the Family Justice Council to look into the use of audio and video recordings obtained by parties going through the family courts. Sir James Munby made the request in a judgment published on 18th October. 

The case before Munby was an appeal which threw up the issue of covert recordings used within the family courts, their admissibility and the lack of guidance in this area for family professionals and the parties themselves. Parties in family court cases sometimes record events or conversations in secret, to show wrongdoing when there is no other way of proving fault.

Key parts of the judgment are added below:

“The courts have had to grapple with the legal and procedural issues generated by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial. Since the second half of the nineteenth century the courts have had to grapple, and keep up, with the legal and procedural issues generated by the invention of technologies for the audio or visual recording of events.

On one level there is nothing very new about this. Thus, the covert filming or video-recording of personal injury or benefits claimants suspected of fraud has been an established and acceptable practice for many years. But in the family courts the issue has become much more pressing in recent years.
There are, I suspect, two reasons for this. One is the ever increasing sophistication and miniaturisation and at the same time ever decreasing cost of modern recording equipment. For anyone possessed of a smartphone or similar piece of ‘kit’, surreptitious audio recording or filming of events is child’s play.

The other, I fear, has to do with the widespread distrust in too many quarters of the competence or even the integrity of the family justice system and of the professionals involved in it. Here, of course, it is the existence of the mindset rather than its foundation in reality which is the driving force. But it does give rise to important questions of public policy.

That said, it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.
It is important to distinguish between open recording and covert recording. In the nature of things, it is the latter which is more problematic. Without seeking to establish a complete taxonomy, there are at a least three categories of covert recording, each of which may raise a variety of different issues: covert recording of children, covert recording of other family members, and covert recording of professionals.
Whatever the nature of the recording, a number of issues are likely to arise.

Again without any pretence to completeness it is obvious that questions may arise as to: (i) the lawfulness of what has been done;

(ii) best practice outside the court room as it were; (iii) the admissibility of the recording in evidence; and

(iv) a variety of other evidential and practice issues (for example, as to how the recording is to be put in evidence, problems in relation to sound and picture quality, and, in particular, disputes as to authenticity – who are the people who can be heard or seen on the recording, has the recording been edited or ‘cut and spliced’? – which may necessitate calling expert evidence).

Furthermore, in relation to all this it may be important to identify who is doing the recording and why. Covert surveillance and recording by the police and other agencies, including the Security Service, which in current conditions not infrequently impinges upon the family courts, is one thing. Covert surveillance and recording by others may – I put the point no higher, it being a matter for another day – raise rather different issues.

I draw attention to these matters to show that covert recording in the context of the family courts potentially involves a myriad of issues, very few of which, despite all the judgments to which I have referred, have, even now, been systematically considered either at first instance or in this court.

I propose therefore, as a first step, to invite the Family Justice Council, which as a multi-disciplinary body is particularly suited to undertake the task, to consider the whole question of covert recording from a multi-disciplinary viewpoint.”

Using his signature blend of diplomacy (make of that what you will), Munby uses the public judgment once more to raise awareness of problems inside the system and invite investigation. Researching Reform hopes that when the time comes, parents, researchers, and activists will all contribute to the consultation. We most certainly will.