Laws of Eve | Secretly recording children in custody proceedings
Fans of old James Bond movies will remember gadgets such as the cassette recorder hidden in the book in Thunderball and the tape recorder camera in From Russia with Love. Whether art imitates life or life imitates art, many real-life situations involve the use of covert recording devices that are more modern and sophisticated than the old cassette recorders and far more effective.
If the court allows it, transcripts of recorded conversations may be admitted as evidence in court proceedings. This is true for criminal and civil proceedings, and even family proceedings, but a recent decision in a custody case in England provides a timely reminder that cloak-and-dagger strategies can backfire.
In M v F (Covert Recording of Children)  EWFC 29 (16 May 2016), father and mother fought an 18-month court battle about which parent their daughter should live with. During the proceedings, the court ruled that the father could adduce more than 100 pages of transcripts of 16 conversations involving his daughter in an attempt (he said) to protect his daughter from abuse.
The recordings were made using covert recording devices (bugs) that were sewn into the daughter's clothes by the father's partner, iPhones and iPads. The recorded conversations included discussions between the child and her mother, her teachers, friends and social workers. It was confirmed that the child was not a party to the conspiracy, and was not aware that the recordings were being made.
In the end, the clandestine mission did not help the father's case. The court ruled that the child should reside with her mother, because it was felt that
". . . the father and his partner could not meet her emotional needs as main carers. The recording programme was not the only indicator of this, but it was a prominent one. The mother was entitled to say that she objected to her daughter being brought up by someone who sewed recording devices into her clothing, something she described as "really disturbing".
NO USEFUL INFORMATION
The court found that the recordings had produced no useful information. Instead, they served to:
i) Further damage relationships between the adults in the child's life.
ii) Show the father's inability to trust professionals.
iii) Create a secret that may well affect the child's relationship with her father and stepmother when she comes to understand what has happened.
iv) Put the family's standing in the community at risk as third parties may react negatively when they learn that they were being secretly recorded.
v) Waste time in setting up the recordings and in transcribing them.
vi) Significantly increase the cost of the proceedings. The father had to pay to have the recordings transcribed (PS1,500) and was ordered to pay the proportion of the mother's costs attributable to time spent on the recordings (PS9,240). While the matter unfolded, there was an issue about whether the family could afford to pay the child's school fees.
To the many persons embroiled in family disputes who may contemplate secretly gathering evidence, the warning from the judge in the case is ... Think twice, and consider the long-term effects on the child who will need to be told about the recordings.