It does not apply to making recordings of children or of court proceedings. The appropriateness and value of recording children depends very much on the circumstances and nothing in this note should be taken as suggesting that children are recorded making allegations or expressing views except in a controlled environment and under the supervision of appropriately qualified professionals.
And, rather than being “for” (or “anti”) recording, the note sought to explore some of the legal issues around recording and to encourage sensible discussion about recording issues, seeing this as a flag that there were trust issues that needed a bit of social work doing to them. Often parents want to record because they feel fearful and distrustful. At a recent discussion at Community Care Live conference that I participated in there was some useful discussion about the potential for recording to be used to manipulate and control and those are of course issues that we all need to be alive to.
@celticknot tweeted on reading the judgment that :
“clear message in opening sentence [of the judgment] may be unhelpful…”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.” I consider the detailed guidance of @seethrujustice here to be much more helpful”.
He went on to say that
The problem, it seems to me (and earlier caselaw reflects this) is always about trust: the decision to record reflects a breakdown in trust, and the breakdown in trust has consequences. In this case, the breakdown in trust was in the family, and the judge is quite right about the consequences of breakdown in trust between parent and child. In other cases, the breakdown in trust is between parent and State, and I really don’t think the way to repair that trust is for judges to express their disapproval.
Of course, strictly that isn’t what judge is doing here, because context specific. But it’s very difficult to detect the ratio of this judgment and its scope, where the judge has expressly given a ruling for the purposes of expressing disapprobation of recording, and chosen NOT to publish the substantive judgment which would be necessary to truly establish the ratio of the case.
@seethrujustice (me tweeting) said “our guidance doesn’t relate to recording of children, only of meetings. different issues arise.” @celticknot’s response was :
Issues are very different, yes. But I fear judicial disapproval of covert recording will be picked up on…and the significant differences won’t. And your guidance addresses some real misconceptions; don’t think the case does…which is why my following tweet tried to open up the wider issue of trust: [links back to earlier trust tweet]
@suesspiciousminds pitched in with
I thought that too. But it must be covert recording of a child to be directly applicable to this case….I think tho that Judges may take this as a lead to be squeamish about recording per se
The judgment links to an equally egregious case of very bad behaviour around recording (C (A Child)  EWCA Civ 1096, oddly only on FLW not BAILII).
When one reads the judgment it is expressed very strongly and whilst I don’t disagree with the sentiment expressed and I would condemn the behaviour in either of those cases, I think there IS that danger that it will be seen as criticism of any recording, whether covert or not, whether of a child or not, regardless of purpose or manner. There is a risk of the baby being thrown out with the bathwater.
I also noted with surprise that the CAFCASS guidance on this was criticised. It is only partially quoted, and in my view is quite thoughtful (I know, pleasant surprise). It is I think intentionally neutral about recording, merely objectively pointing out some of the potential forensic issues which may arise – I don’t agree that it would be appropriate or helpful to appear judgmental in this document about hypothetical recording – CAFCASS have to work with parents. This is an operational document for cafcass officers (what should officers do if X happens) NOT guidance for parents (you can read it here – do ctrl+f and search for “covert”).
Sadly I think that what is easy for us to see as professionals or as parents who are not caught up in some awful dispute, and not under threat of their children being taken away, is not always as easy for parents to grasp. Many are the clients who have talked about recording, hinted they have recorded, or told me about recordings they have made. Dictaphones on a high shelf, ipads behind a toy… it might not be right, but I don’t think its uncommon – what is uncommon is the level of planning, secrecy and the extent of the invasion of privacy that the child in M v F underwent. That I think is exceptional. But many parents do in desperation wonder if they should record their child or their ex to prove their wishes or prove their behaviour. Sometimes they do that by interviewing, prompting, coaching or putting pressure on a child, sometimes the child spots the recording device, sometimes they are blissfully unaware. I think we need to talk to parents and give them guidance about how that might be perceived, how it might feel for a child and how it might help or hinder their case. What the father in M v D did is on a scale I’ve not seen, but I don’t think that it would be accurate to suggest that no parent has ever thought of embarking on a spot of covert recording in a misguided attempt to protect what they see as the best interests of their child, or even to suggest that there are not lots who have once or twice, discreetly pressed record on their iphone at a critical moment. And whilst I would not advocate it, I would not want to suggest that it should never be done or never admissible or that it could never be probative. I can think of one case I dealt with not so long ago where an old recording of an argument between parents that was recorded on a mobile phone by one of them inadvertently provided important corroborative evidence about an injury inflicted upon the child by the parent who was being recorded (the child also participated in the phone call so was the subject of recording).
Perhaps The Transparency Project should do a Guidance Note about this, having intentionally steered clear of this aspect of the recording debate when we prepared our first guidance?
I’ve posted this blog on my own blog rather than The Transparency Project because at present the project group have not considered or formed a view about this issue, so this post represents my personal thoughts only. I will repost on the project blog in order to contribute to broader discussion. As with the previous guidance, any guidance the project produces is likely to attempt to help parents and professionals think through the issues and why recording a child may be a good or bad idea, rather than telling them what to do in an individual case or expressing a policy view.