England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		16 May 2016

Mr Justice Peter Jackson:

1. 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. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’'s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.
2. The details of the case itself are not relevant. It was a dispute about whether a child in the later stages of primary schooling, who I will call Tara, should continue to live with her father or move to live with her mother. At the end of the hearing I decided in the mother’'s favour, an outcome supported by the Children’'s Guardian. That judgment will not be published lest a link be made between the family and the events now described.
3. The dispute between the parents was bad enough for the local authority to have become involved and for the court to have appointed a Children’'s Guardian for Tara. All in all, the proceedings ran for 18 months and during that time there were a number of meetings between Tara and her social worker, a family support worker and the Guardian. Unfortunately, the father and his partner were determined to know what the child was saying at these meetings and also to record what the professionals were saying. As a result they embarked on a plan of action described in this extract from the original judgment:

“"The father’'s recordings

19. At a core group meeting with the social workers in late January 2016, the father disclosed that he had been making covert recordings since the end of 2014. In a statement dated 21 February, he produced a number of transcripts dating back to November 2014.

20. At the outset of the hearing, I was asked to rule on whether the father’'s recordings should be admitted in evidence.

21. The first task was to establish the facts, and I heard from the father in evidence on this point specifically. Having done so, it emerges that the facts are these:

(1) The father produces transcripts of 16 conversations running to over a hundred pages

(2) All but one of these are conversations involving Tara

(3) The exception was a local authority pre-proceedings meeting (see below)

(4) A significant number of recordings have not been transcribed or produced

(5) The first recording was made in November 2014, the last in March 2016

(6) The proceedings had been ongoing for well over a year before the existence of the recordings was revealed

(7) At least four devices were used

(8) At least two of these were small recording devices (bluntly, bugs – the one I was shown was no larger than 3 x 1.5 cm and can be bought on the internet for a few pounds)

(9) The other devices were iPhones or iPads belonging to the father and his partner

(10) The bugs were bought by the partner

(11) She sewed them into to a false bottom to the breast pocket of Tara’'s school blazer

(12) On some occasions a second bug was sewn into Tara’'s school raincoat and used at the same time to maximise the chance of picking up conversations

(13) On a day when a meeting was happening, the partner sewed the bug(s) into Tara’'s clothing just before she left for school – any earlier and the battery would have run out by the time a meeting took place at the end of the school day

(14) The bug would therefore be running all day, recording everything that Tara did

(15) Tara was therefore recorded at school, when with her teachers and friends, and at the contact centre when she went to meet her mother or speak to her on FaceTime

(16) Recordings were also made at home, when the social workers and Guardian visited

(17) At the end of the day, the bug(s) would be removed from the clothing so the contents could be downloaded

(18) The partner would make transcripts of what she and the father regarded as relevant conversations

(19) Other conversations were recorded by the father using his iPhone as a recording device

(20) He would leave it running in the breast pocket of his shirt or hold it, apparently innocently, in his hand

(21) At other times, when professionals were visiting the home, the father or his partner would leave an iPad or iPhone running in the top of the partner’'s handbag in the room where the conversation was likely to occur

(22) In February 2016, the father attended a pre-proceedings meeting with the social workers. They challenged him about his recently revealed use of recordings and he turned his phone off. He did not tell them that he had a second device running, with which he continued to record the meeting.

(23) Importantly, the father and his partner state that Tara has never been aware that she has been bugged

22. The father said that he had done all this to protect his daughter, but had not considered the consequences. Initially, he had not intended to disclose the fact that he had been making the recordings. His motivation was to find out about abuse and to hear Tara saying things to social workers that she might not say to him. He and his partner wanted to know what she was saying to them. They wanted to understand why she was so reluctant to see her mother. As matters developed, he wanted to be able to show that Tara was saying things to professionals that they were not reporting or acting on. Although the partner took most of the practical steps, it was planned together and he was responsible.

23. The father accepted that at an earlier stage he had carried out surveillance on the mother, including by using a private detective and by monitoring the in-car tracker device. He gave “"no comment”" answers to questions about accessing her private emails or iPad location service, but he admitted to accessing and making a screenshot of her private Facebook page when it was open on Tara’'s iPad. He had also taken hundreds of photographs in and of her home during the financial proceedings in order to substantiate his claim that she had a live-in boyfriend.

24. Having heard the father’'s evidence, I ruled that the recordings should be admitted and deferred explanation until now, so that the possible relevance of these actions to Tara’'s welfare could be considered in the wider context.

25. The mother did not oppose the admission of the recordings. Counsel on behalf of Tara drew attention to the court’'s powers under FPR 22.1 to control the evidence it receives. This includes the power to exclude evidence that would otherwise be admissible. She urged that as a matter of public policy conduct of this kind should be discouraged and that the resulting evidence should only be admitted in exceptional circumstances. Moreover, the material that the father wished to file was selective. If the court did not exclude the evidence obtained in this way, it would send the wrong message to other parents. At the same time, she contended that the fact that the recordings were made is in itself relevant and, indeed, important when considering Tara’'s welfare. She submitted that the recordings were not unlawful and do not constitute a breach of the Data Protection Act 1998 because they fall within the ‘'domestic purposes’' exemption provided by s.36:

36 Domestic purposes.

Personal data processed by an individual only for the purposes of that individual’'s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.

26. I have not heard further argument about this, and it is unnecessary to determine whether the father’'s actions were illegal. That said, I believe that there may be good arguments for saying that the covert recording of individuals, and particularly children, for the purpose of evidence-gathering in family proceedings would not benefit from the domestic purposes exemption. Uneducated, I would assume that the exemption is intended to protect normal domestic use, which this is not.

27. In this case, I am in no doubt that the recordings were rightly admitted. The manner in which they were made is directly relevant to an assessment of the parenting offered by the father and his partner. They are so extensive that it would be unreal to exclude them, particularly after I had heard evidence from the father about their creation. It would be theoretically possible for the court to receive evidence of the making of the recordings but not their contents, but this would risk unbalancing the evidence if the contents were in fact of any value.

28. This case is a striking example of the acute difficulties that can be caused by adults recording children for the purposes of litigation. From the time the recording programme was revealed, everyone involved in these proceedings, except the father and his partner, immediately realised that it was wrong. The mother, rightly in my view, described it as “"unbelievable”". Even so, the full extent of the deeply concerning ramifications for Tara’'s welfare only became apparent as the hearing progressed. By the final day, even the father appeared to be beginning to understand the difficulties that he had created not just for his case but for his child.

29. This issue has also meant that the difficult question of whether Tara should be told that she has been recorded must be faced. It has also compounded the costs of the proceedings.”"

Consequences

4. The main reason for changing Tara’'s home base was the conclusion 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”".
5. Next to consider are the consequences for the proceedings of a large mass of material being produced at a late stage. The recordings put forward were selective and were not at first professionally transcribed. In the end, the issue increased the length and cost of the hearing, yet it did not produce a single piece of useful information. Instead:

i) It further damaged relationships between the adults in Tara’'s life.

ii) It showed the father’'s inability to trust professionals.

iii) It created a secret that may well affect Tara’'s relationship with her father and step-mother when she comes to understand what has happened. As I said:

“"She is also at risk of harm arising from the recordings. I accept the Guardian’'s compelling assessment that it would be extremely damaging for Tara if the information comes to her in future in some uncontrolled way, something that is likely to cause her confusion or distress and seriously affect her ability to trust people.

I also accept the Guardian’'s analysis that the safer course is for Tara to be informed of the facts in a sensitive way in the relatively near future, once the immediate aftermath of this hearing has passed. There then needs to be a concerted effort by the family and the professionals to make sure that the information is contained within the group of people who will need to know it in order to carry out their statutory responsibilities. The consequences for Tara and her whole family of the father’'s behaviour coming to wider knowledge could be very serious, with unpredictable social and legal outcomes. However, the alternative – a conspiracy between those in court and the court itself to keep the matter secret from Tara and everyone else – is unacceptable in principle and unworkable in practice. It is a problem that needs to be faced and that is best done at a time when Tara is surrounded by professionals who know her situation and are well placed to help her make sense of it.”"

iv) As indicated, the family’'s standing in the community has been put at risk. It is not hard to imagine the reaction of other parents at the school if they learn that their children were being recorded as a result of talking to Tara or even being near her, and the consequences of that for the father and most of all for Tara.

v) It involved an enormous waste of time on the part of the father and his partner in setting up the recordings and in transcribing them.

vi) It significantly escalated the cost of the proceedings. The father had to pay to have the recordings transcribed (£1,500) and on top of that I ordered him to pay the proportion of the mother’'s costs attributable to time spent on the recordings (£9,240). At the same time, there is an issue about whether the family can afford to pay Tara’'s school fees.

6. Anyone who is considering doing something similar should therefore first think carefully about the consequences.
7. This judgment does not relate to the practice of recording adults covertly for the purposes of family proceedings, or of recording children in other ways. Experience suggests that such activities normally say more about the recorder than the recorded (as in Re C [2015] EWCA Civ 1096), but there are so many possible circumstances that it is not possible to generalise. I note that the Cafcass Operating Framework (at 2.27) says that its officers should have nothing to fear from covert recording, but should bring it to the court’'s attention if they become aware of it, and ensure that it is dealt with methodically. That is no encouragement to the production of recordings, merely a reflection of situations that sometimes arise.
8. The Cafcass framework also mentions (at 2.29) that one form of covert recording may be the concealing of a device on a child, but makes no comment about that. In my view, that scenario does deserve comment of the kind that appears in the first sentence of this judgment.