The Family Justice Council will hold a debate next month, looking into the use of undercover recordings produced within family law cases. The Council, a public body sponsored by the Ministry of Justice, was set up to promote an inter-disciplinary approach to family justice and to monitor the system.

The debate, which is going to be held in Leeds, will be chaired by Lord Justice Baker, Lord Justice of Appeal and Deputy Chair of the Family Justice Council. Panelists include a deputy district judge, a family law silk, a circuit judge and a legal services director. None of the panelists scheduled to speak at the event have any first hand experience of the system as a service user.

It’s not clear from the FJC’s event page what kinds of recordings it hopes to discuss, thought it will likely focus on the recordings families make while going through their own cases, most often within child protection proceedings or general interactions with social workers in person, or on the phone.

Currently, there are no laws in place preventing families from recording their conversations with child welfare professionals, who have taken to doing so for a variety of reasons. These can include situations where a family will have been subjected to malpractice or unethical conduct by professionals they’re working with, and decide to record their interactions in order to either prove the malpractice or demonstrate errors made by professionals in their cases. Some families simply need to record the interactions so that they can refer back to them, as it can be difficult to take in all of what is being said at the time.

While best practice in these situations involves asking professionals in the first instance if they can record the meetings, such requests are polite formalities, so if a professional refuses, families are legally entitled to record their conversations without getting consent. CAFCASS has been sympathetic to the recording process, even going so far as to remind social workers that if they carry out their duties competently, they have nothing to fear from these recordings. CAFCASS published this sentiment in 2015 guidance they produced on the recording process, though the document has since been removed from their website.

There are also other forms of covert recording within family cases, which families are not responsible for. These include undercover recordings which are being commissioned by local authorities to monitor families and children. There is no practice guideline that we know of which places a duty on councils to alert families that they are being, or going to be, recorded. A judgment in 2017 revealed that councils were employing private detectives to spy on families engaged in child protection proceedings, raising serious concerns over whether this was in fact legal. 

The debate comes in response to former President of the Family Division, Sir James Munsby’s request to the FJC to look into covert recordings, while he was still serving as President. Munby made the request in a judgment that was published in October 2017. In that judgment, Munby asks the FJC to explore covert recordings, and lists the different situations in which these recordings take place, and why they are made:

“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.”

The debate is scheduled for Monday 3rd December, from 5.00pm to 7.00pm. If you would like to attend, you can email the FJC at fjc@justice.gsi.gov.uk. The council will not accept requests to attend after 21st November, and will notify those given a seat by 26th November.

If you’d like to access more information on covert recordings in family cases, including a guide for families going through the family courts and how much councils spend on covert surveillance in family cases, enter the phrase ‘covert recording’ into this site’s search bar.