Just for the record…

It is an astonishingly poor judgment to plant a bug in the clothes of one’s own child. Mr Justice Peter Jackson was not impressed at the actions of a father who did so repeatedly, in order to gather evidence in a court dispute about his daughter (See Guardian article here for summary). The poor child was sent to school with bugs on her person, her every move recorded – and ultimately the vast amount of recorded material produced not one shred of evidence to support the father’s case, instead demonstrating clearly that he could not meet his daughter’s emotional needs.

It was ever thus. Ask any family lawyer if they have been presented with a recording by a client and most will say yes. Ask them if they have ever listened to a recording that either proved the point the parent thought it proved or was anything other than damaging to their own case and most will say no. Don’t secretly record your children in the hope you will win your case, people. It almost always backfires.

I wanted to write a short blog post about this because there has been some linking on twitter between the judgment in this case (which you can find here : M v F (Covert Recording of Children) [2016] EWFC 29 (16 May 2016)) and the guidance on the recording of meetings which The Transparency Project published earlier this year (Parents Recording Social Workers – a Guidance Note for Parents and Professionals) (I’m the Chair of The Transparency Project for those who don’t know).

The clue is in the title – our guidance was about parents recording social workers, not parents recording children (although of course there is some cross over). Under a heading “What this note isn’t about”, The Guidance said this :

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) [2015] 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.

16 thoughts on “Just for the record…

  1. Winston Smith

    II#m sorry, Lucy, but it is crucial all meetings are recorded, so there is an objective record as to what was said.

    There is the famous case of the SCF Dept’s enquiry into FII. An experiment was set up with actors and hired homes and the interviews secretly recorded.

    What shocked the experimenters was not any allegations of FII emerging but the social workers’ reports bore no relation to what was actually said.

    • I don’t believe I expressed a view at all with the question of recording meetings in this blog post.
      I don’t know about the research you are referring to – are you able to provide a link?

  2. […] guidance on recording of meetings with social workers. You can read her blog post here : For the record… You can read previous posts about our recording guidance […]

  3. Whilst balance and proportionality has to be the consideration, Kids for Cash UK always advises parents to record every meeting with social workers, police and other professionals. We’ve had too many instances where not to have done so would have missed important evidence of records falsification and even conspiracy to pervert the course of justice.

    Recording a child appears a step too far but that would have to be balanced with whether the intent is really to record those whom are suspected of causing harm.

    The wider issue of trust would be helped if the police and the courts started prosecuting those cases where the professional malpractice strayed into the criminal arena. A few jailed social workers would go a long way to making a cultural shift that recognised that whatever pressures social workers are under, nothing excuses criminal conduct.

    Sadly, we now have cases that evidence criminal collusion between Children’s Services, police and even CPS, as they seek to avoid the inadequacies of their responses from coming to light. The stakes can get even higher when ‘maintaining public confidence in the judicial system’ comes into play, as we are now seeing with MoJ and Home Office intervention in our NMO scam story. We had hoped to publish much of the NMO story by now but it has developed into a ministerial slanging match with political careers at stake.

    We should never underestimate the desire of public officers to protect themselves when wrongdoing comes to light.

    • Where are all the prosecutions for conspiracy to pervert the course of justice arising from those recordings then?
      Can you give us some more concrete evidence of the collusion you refer to? Or of the NMO “scam”?

      • There have been a number of documented instances where recordings have prevented the prosecution of parents but we are a long way off from the required cultural shift that would render recording unnecessary.

        You’re probably already aware of the routine insistence of the Family Court that conspiring to pervert the course of justice ‘is a matter for the police’ being rebutted by multiple constabularies as ‘it is a matter for the court’. Clearly, plod is either not aware of the implications of the amendment to s.9 of the Perjury Act or choses to misrepresent the law. If you’ve not come across any of these cases then it shouldn’t take long, as an interested legal professional, for you to find them.

        On the wider issue, following Kids for Cash UK’s analysis of five years’ of raw NMO stats provided by the MoJ, including identifying those law firms and circuits involved, the matter is now has the attention of ministers of both the Home Office and the MoJ. The MoS did run a story recently but managed to botch the salient points whilst introducing a few of their own. A recent one-to-one conversation with Lord Judge confirmed that the judiciary is absolutely aware of our investigation.

        However, on the back of our analysis and collation of the data, a number of MPs (cross party) are lobbying ministers for a joint criminal and judicial investigation. Solicitors who have encouraged vulnerable or malicious parents to concoct false allegations of domestic violence should live in fear of the early morning knock at the door. Privately, ministers admit that the issue has been know about for some years but, where there are political careers at stake, as well as the issue of ‘maintaining public confidence in the judicial system’, significant leverage comes into play.

        None of this is new, and Kids for Cash UK’s investigation into the historic Leicestershire abuse cases has not only uncovered episodes of social care records being falsified and destroyed but is beginning to demonstrate how the police and social services can collude in destroying evidence. The same officers are evidenced in later years as being involved in similar activity in their subsequent senior roles in other authorities. Having recently seized documents that evidence the involvement of the security services in the Leicestershire cases, and having had a very well respected, award winning journalist and documentarist confirm similar activity in cases elsewhere, it’s fast becoming clear that, where VIP paedophiles are involved, the state is prepared to turn a blind eye to some of the most abhorrent perversions of justice that I have ever encountered. I accept that these cases are at the more extreme end of malpractice but, nevertheless, the evidence clearly demonstrates case files being falsified and destroyed as a means of mitigating blame.

        NB for some reason the notifications system isn’t working on your blog, so I don’t get any notification of you having replied.

        • David – that’s quite a rangy comment and I don’t have time to respond to it all. But in relation to the non mol thing – can you help me with this please? I know that there is evidence of very high numbers of nmos being sought by particular firms in particular geographical pockets, and this leads to legal aid. But I am not sure if you are saying there is evidence of criminal activity in the sense of solicitors encouraging false claims other than the statistical differences between areas / solicitors firms? Because in itself the statistics are consistent with that theory but I struggle to see how they could be probative of it – they could arise for a number of reasons.

          • Apologies for the delay in my reply. As previously stated, the notification system seems to have gone AWOL.

            We have just been informed (and copied into an MoJ email) by one of the MPs with whom we’re working that the MoJ has launched a full investigation of NMOs and related legal aid.

            Obviously, I’m not at liberty to share family court bundle contents but I can tell you that the evidence that we’ve seen to date shows not only the system being ‘played’ by both litigants and legal professionals but that there has also been, in some areas, a complete disregard for judicial guidelines and practice directions.

            An analysis of the evidence proffered on ex-parte applications, shows a very low percentage corroborated by police reports, and a high percentage corroborated by women’s refuges. We have already evidenced one example where a law firm’s senior partner (Family Law) is also in a senior position in a women’s refuge. The refuge has been channelling its referrals direct to the law firm.

            The most outstanding statistic is one available online, made in answer to an MPs parliamentary question, prompted by us: http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-02-19/27512/

            We’ve now been asked to provide documentary evidence to the MoJ but are simultaneously being warned that all may change, with an anticipated change of personnel, after the EU referendum.

            Apologies for the huge typos in my posts but I am hampered by a mobile device that appears to have a mind of its own…

          • Thanks David,
            What is it that you think is “outstanding” about the statistics you link to (other than the fact that they don’t make sense)? There is a general increase in non-mols applied for and made and a low level of refusals recorded, but none of that is particularly surprising and can be explained potentially in varying different ways. Can you be more specific? I think the stats are pretty good evidence that HMCTS don’t record stats well as nothing seems to add up and you can’t disaggregate non-mols made on return dates from those renewed on return dates for example. I suspect the v low level of refusals does not incorporate those where no order is made pending an on notice hearing, or where no order is made. It probably only counts formal dismissals and only then if the right person happens to tick the box….

  4. A Guidance Note would be really useful. On a related note, could you include guidance on recording as part of evidencing domestic abuse which is a huge grey area? Whilst it can be useful to record an episode of rage, I am also very aware of abusers deliberately provoking their partner in order to record the ensuing reaction. Maybe some guidance not just on recording but also on interpreting the recording ? Thank you Lucy!

    • I think recording to evidence domestic abuse is really difficult Min. Not least because as you say the act of recording can itself be controlling or harassing behaviour. I have certainly seen it used as an attempt to manipulate the position and in anticipation of allegations by a partner. I think the difficulty with recording for evidence of domestic abuse or behaviour of one partner towards another is that one of the parties involved in the exchange knows the recording is being made and is naturally moderating their behaviour in that knowledge, even if not perhaps intentionally. I think that creates all sorts of problems evidentially. I would have thought that in some abusive situations the act of recording might expose the victim to greater risk if the device is found. Photographs of fresh injuries however are very important. On a slightly separate note, the obvious records of domestic incidents are 999 call audio recordings or bodycam footage from police callouts. Those are rarely sought or disclosed in my experience (and not all forces use bodycams) but perhaps more consideration should be given to that. More relevant probably in direct physical violence cases than more subtle forms of abuse, but potentially highly important in some cases. 999 calls catch all sorts of stuff and I don’t think people realise they are being recorded. In many cases the running log gives an adequate picture of what was happening at the point of the call being made, and the printouts are often disclosed. Slightly jumbly response, in the middle of something else!

  5. Armchair Lawyer

    It’s happening more and more with the growth and availability of digital recording technology. With even the Police often having headcams now there is a certain inevitability to it.

    • Why such a discussion on surveillance is beyond my comprehension, the protection is within the court system, all evidence is stated on oath and the sworn statements, surely the Almighty is ones protection

  6. TotallyConfused

    Well, I personally always tell clients to record (audio) any meetings between them and LA staff in their home. But I would never condone planting a recording device on your child….I mean, come on! (I might be odd, but to me that is involving children in adult actions and decisions inappropriately.)

    I never advise people to record meetings or court ‘events’ outside their own property.

    (Quick response as I too am up to my neck in alligators today!)

    • I’m with TotallyConfused. I have been, over the last 30 years, not only a Social Worker (in adult mental health), but a Foster Carer and a divorcee, and I have been floored on many occasions by the sheer ineptitude of the Local Authority. The only thing that has staggered me more is the sheer scale of that ineptitude. I’ve repeatedly come across Social Workers in Children’s Services who could barely string a sentence together. Most have a notional familiarity with the relevant legislation and struggle with even the most basic understanding of their legal responsibilities. Once, when chasing an over due Subject Access Request, I was posted the following explanation.

      “Sorry about the delay in fulfilling your SAR. The delay has been caused by a delay.”

      I kid you not. When I pointed out to them that there was a mandatory 40 calendar day time limit which they’d exceeded by some weeks, they seemed surprised, “Really?”

      Once when I had a formal complaint upheld against a Fostering Service, they explained in their apology that, despite the problem extending to management level, the mistake had been made because there had been a lack of knowledge of the Children Act 1989. A Fostering Service!

      Whilst I agree that bugging a child is completely inappropriate, recording meetings with Social Services and other childcare professionals is absolutely essential.

  7. […] In May the issue of covert recording cropped up, as it has done in a number of judgments this year and last. (see also Transparency Project’s recording guidance and a post I wrote about the topic here). This particular one was the shocking case dealt with by Mr Justice Peter Jackson, where parents sewed bugs into their child’s school uniform to record comments made whilst at school. It didn’t go down well. See : Just for the record… […]

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