Or so I often say to local authorities (although I say it nicer than that).
But often, parents – including my own clients from time to time – having instinctively grasped the best evidence principle (apparently better than some social workers), struggle then to understand why they are either prevented from gathering their own “best evidence” or from relying upon it. I am talking about the antidote to the age old “he said” / “she said” : the audio recording.
Now any family lawyer will tell you that their heart sinks when a client gets out a dictaphone and starts to squibble through it to the apparently killer moment in an audio recording of appallingly low quality. Because it is rarely killer evidence. And in fact the only time I can recall such evidence being “killer” it killed my client’s own case. It was her own recording. So beware the perils of recordings. They often reveal as much about the recorder as the recordee.
There are very real practical difficulties with the use of audio recordings in family proceedings.
Firstly, there are potential issues around the lawfulness of making covert recordings in some circumstances (and I’m not even going there in this post).
Secondly, particularly in the era of digital recordings it is very difficult to prove or satisfy oneself of the authenticity of a recording (or at any rate it is unlikely to be something that can be satisfactorily dealt with – it is highly unlikely a forensic IT expert is going to pass the “necessary” test in many cases). So, questions like : Is the recording the complete conversation? Has the recording been edited or resequenced? are likely to be unanswerable in practice. And this may render such evidence less weighty than it could potentially be if time and resources were limitless. But much the same is true of facebook and iphone printouts that are often relied upon with no forensic scrutiny of their completeness – it takes a mere couple of clicks to remove an unhelpful text from a sequence of messages. If it doesn’t bother us in that example why should audio recording be different (actually I think it should bother us in both contexts, but I’m not sure how that can be dealt with without chucking proportionality out of the window).
And thirdly, there are likely practical difficulties in terms of service of and accessibility of electronic material where LiPs are involved (as they often are in the private law cases that most recording efforts arise from), and difficulties in ensuring the necessary equipment is arranged in advance of a hearing.
I think it is fair to say that it is not only lawyers who are pretty down on audio recordings. Judges and CAFCASS officers are reluctant to listen or refer to them too, I think because they typically fall into one of three categories of recording :
- a recording of a part of an argument, perhaps one which has been engineered by the recorder doing something provocative before the recording begins, and which are set up in order to show the recordee in a bad light
- a recording of a child being asked direct questions or under pressure, often being asked to repeat the thing said before the tape turned on
- a recording of a child being demonstrably in distress
In my experience these types of recordings are rarely of any evidential value and show the person making the recording in a very poor light. It is generally (but not necessarily always) my advice that this sort of material should not be relied upon because it is unlikely to help and may make things worse.
Recordings of children are even more problematic than adult to adult conversations. Children are now often more adept at the use of electronic handheld devices than their parents, and are often wise to their parents recording them on their iphone, or have a habit of finding the hidden camera behind the pot plant. I recall one excruciating recording where the child asks directly why he is being recorded. This sort of recording is almost never helpful and if a parent desperate to obtain the “proof” of whatever thing it is that they have been disbelieved on succumbs to the temptation to quiz the child can become emotionally abusive. Typically this is about childrens’ reports of what the other parent does or says to them whilst in their care, or about the childrens’ wishes and feelings.
So for me recordings of children are a no no.
But what about recordings of meetings and liasons with professionals such as CAFCASS Officers and social workers? I think that is a rather different proposition.
I know it makes professionals uncomfortable. But frankly, so what? The system is not structured for the comfort of professionals. Parents however are routinely made uncomfortable by the highly intrusive child protection process – something we should not dismiss. And since there are routinely substantial differences of recall or opinion about who said what in such meetings it is worth considering whether or not this sort of evidence would assist the court where contemporaneous notes or witness recall cannot.
Forget arguments between parents, or what the childrens’ wishes *really* are – how often have you dealt with a case where the social workers version of their assessment meetings, interviews or home visit are just incompatible with the parents account? The thing is this. There are lots of reasons why a parent’s understanding, experience or perspective of a meeting might be very different from the professional – they may well not be a “reliable” historian in any forensic sense simply by virtue of the fact that emotions are high and the stakes are high also. But the truth of the matter is that sometimes social workers are also less than reliable – sometimes even untruthful. I know that many parents would suggest that social workers are routinely and regularly untruthful, such is their desire to meet their targets to have children removed and secure their adoption bonus. Leaving that aside for one minute (I don’t think that is really what happens) I have met plenty of social workers who are just not great with detail, who don’t recognise their own emotional involvement and how it alters their own perspective and responses to a situation, and who are see, record and retell the history in an overly negative light. I have met social workers who seem to be prepared to gloss over the specifics of a particular conversation for the “greater good”, which is to secure the outcome that they genuinely think is best for the child. I have sometimes suspected dishonesty on the part of a social worker but have rarely proved it. There are cases in which social workers have been caught out lying, but they are infrequent. Here is a notorious example of a case where the honesty of a social worker became a really big issue : Bath & North East Somerset Council v A Mother & Ors  EWHC B10 (Fam) (22 December 2008). Here is one recent example of where a recording was crucial : Man Wins Compensation After Recording Saves Him From Prison.
So, what I have been thinking is that there is an easy way of dealing with all of those cases where a parent denies making a particular remark to the social worker, or where they criticise the Guardian or social worker for failing to report something important they did say. And that is to record those conversations.
So. When I intially started writing this post it was because I was pondering why a parent should not be permitted, if they wish, to record an interview or meeting that they are required to attend? I see few reasons why they should not do so, providing they make the professional aware (I don’t see why they should need consent but I do not think that recordings should be covert – not least because it is subsequently impossible to have confidence that a recording represents the whole meeting). Those I can think of are that they might selectively edit the recording to mislead the court, or that they might distribute the recording, for example on the internet. Well. They might. But although that is undesirable it isn’t in principle any different to all the other vast amounts of material put out there by parents. And just as with other sorts of information orders can be made to prohibit such action.
And at any rate, I think that there are bigger issues at stake. Like tackling the widespread belief that social workers all tell lies, that they are all corrupt, and that it is dangerous to talk to them. I have dealt with a number of cases recently where this sort of belief has materially affected the trajectory of a case because a parent’s engagement has been adversely affected. We have to find ways to help parents feel safe working with social workers and CAFCASS so that we can see past their apparently inappropriate reactions to authority or threat.
And so then I began to wonder why there couldn’t be routine recording of social work meetings and interviews of adults – not by parents but by the state? Again, there are resource implications. And I think there would need to be a system of written consent from the interviewee, a written record of the fact and times of the recording maintained and given to the interviewee and of storage of those recordings for future use (a bit like a PACE notice that you get at the end of an interview under caution). If the police can have helmet cams why can’t social workers have some equivalent audio recording system? A parent would then be able to elect not to be recorded (at their risk) or would have a record that a recording existed and how long the recording should last. It would obviate the need for the parent to record, and would remove the temptation of a parent disseminating a recording online before receiving legal advice. It would protect the social worker against allegations of inappropriateness or dishonesty (assuming they were indeed appropriate and honest). It could indeed provide evidence if necessary of a parent’s damning remarks or poor behaviour.
So yes, it is counter intuitive for professionals. But it is actually a form of protection for both professionals and parents. It should not make people nervous. It might be said that it will somehow represent a barrier to engagement or the building of relationships, but social workers purport to record interviews and engagement with parents anyway (and frankly in my experience are a bit rubbish at it much of the time – and don’t even get me started on the continuing LA practice of destroying contemporaneous manuscript notes on logging) – so parents know what they say is going to be scrutinised anyway. The more I think about the more I am convinced that a parent may well be reassured to know that they are not going to be “stitched up” (as many see it) by lying social workers. It seems to me that a social worker may be more confident in their evidence base if they know that in addition to their notes and recall a record exists of the complete conversation. And it seems to me that in the cases where there is a real and material dispute about a conversation of significance the recording could be sought by any party. It would not need routinely to be produced (just as social work logs are not routinely produced but can be produced necessary).
And perhaps most importantly – if there are dishonest social workers out there (and I am sure there must be some) they will either be compelled to play fair or will be caught out. That surely can’t be bad.
I can see a counter argument here about the possibility that it will become expected that a parent would submit to recording of an intrusive interview in their own home – that does worry me. But equally it worries me that at the present time a parent who records an interview covertly or who seeks to record will have it likely held against them and may be told they cannot rely on it – either by their own lawyer or the court. And I think that is unacceptable. I wonder also if recording were de-stigmatised we might reduce the risk of lawyers advising against use of a recording whilst on “auto-pilot”. Perhaps it is to toss the poor parent from the frying pan into the fire to suggest the state should routinely record interviews with them? There are some big issues here…I don’t know what the answer is – but I do think that CAFCASS and LAs should be thinking about these things. I think that at the very least CAFCASS and LAs should have policies or guidance for practitioners on when recordings should be made, and what a practitioners response should be to a request to record.
I’ll leave you with this thought. There was a rather striking judgment of the President’s out today (Re A (A Child) (Rev 1)  EWFC 11 (17 February 2015) which Suesspicious Minds has already covered here : A tottering edifice built on inadequate foundations. Think about that case. Think about what it tells us about the importance of the primary evidence, about the importance of analysis of the actual facts and where they lead, and about the risks of building an edifice on the “lack of honesty” or “failure to engage” or “failure to acknowledge”. Imagine if the interviews upon which that tottering edifice had been recorded. In that case the dynamite of an audio recording was not needed to topple the building, but in other cases such evidence of inadequate foundations might be critical.