Show Me The Primary Evidence

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 [2008] 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) [2015] 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.

26 thoughts on “Show Me The Primary Evidence

  1. I am a solicitor for a Local Authority.

    My personal view is record everything (interviews, telephone etc). I think it would be far better in the long run. I acknowledge I am in the minority.

    Social Workers often seem to believe that recording interviews would in some nebulous way be a breach of human rights of parents. No idea why.

    Strongest objections I have heard have been from private practice solicitors. Mainly on the lines that they would then be forced to watch hours of mind numbingly boring interviews in which their clients dig ever deeper holes.

    Had a case recently in which of fathers kept whinging that he should be allowed to record interviews with social workers. Put into a working agreement that he could do so provided he provided unedited copies to LA of each interview. He has not signed the working agreement and has avoided meeting with the Social Worker ever since.

    Reminds of all the fuss about reporters being allowed in family court. Such a dramatic campaign on which some reporters built careers. And has anyone actually seen a reporter in a family court since it was allowed? Anyone seen Christopher Brooker in a family court?

    • If the interview with social workers was to be recorded, there’s no need for an agreement, both side record the interview then if there’s a dispute about the content or authenticity, both sided can produce their recording. All you have to agree is that the interview can be recorded by both sides.

  2. Kids for Cash UK would encourage the family law industry to understand that audio recordings can be used to good effect to evidence social workers’ perjury and conspiracy to pervert the course of justice. We’re still advising victims of those target-led authorities to ensure that they record every discussion with children’s services. We know of a number of cases where committal proceedings for contempt against a parent have been halted simply because the parent has been able to evidence the duplicity of the social worker(s).

  3. A very good piece – I wrote a while ago about whether resources permitting, something like police vest cams might be a useful addition.

    My position on recording of social work interviews has moved over the last few years, partly I think as a result of my engaging with people who have had unfair and unreasonable treatment from Local Authorities, and I now hold the view that if people want to do it, they should be allowed to. The evidential and probative impact of it might be uncertain, but if it goes even a small way to reassuring a parent who feels that their words will be twisted or things made up that there’s a safeguard against that, I think it is a good thing. (As ever, my personal views – I don’t speak for anyone other than myself)

  4. I made a recording of the first phone call I had with my children, the first contact after their mum took them away from my care in six months. This was to preserve the moment. What happened was horrific, the children were totally controlled by their mum in every word they spoke. After being over joyed at the sound of my voice they ended up in tears. I could hear my 5 year old daughter saying in tears, Mama I don’t know what I can say.

    The call was very upsetting for my children, their Nan who was listening to the call on speakers, I had it set up and connected through my recording studio so we could all interact in what could have been a very happy moment. As I have been a music producer I have equipment that allowed me to compress the sound, this allowed background voices to be brought forward so every whispered word by their mum was as clear as day. You could also hear several other people in the back ground. Hardly a fair situation for the children to have their first chat with their dad they loved to bits.

    This to me was direct evidence that supported my further complaints to the Cafcass Guardian regarding the manipulation of the children by their mum. I was told that this recording was entrapment. The recording was me talking to my kids. The Guardian as I discovered later when I received the case notes in my FOI request. The guardian wrote that she reprimanded the mother when my son was told he was not allowed to speak of matters when he was asked a question by the Guardian. This matter never went into her reports to the court, it was a further indication of manipulation by their mum.

    In the end the children came home to me where they wanted to be. It took 12 months and the delay in their homecoming was due to the attitude and bias against me by the Cafcass Guardian. I have not let it rest and still 2 years on I am fighting to get a fair investigation into my complaints against Cafcass Cymru. I still have all the evidence, all I need is respect of my human right to a fair tribunal HR article 6.

    I think all meetings with Social Services and Cafcass should be recorded as are police interviews, for the same reasons. In my case I am totally disgusted with the system and will fight even though as I write this my children are playing happily next to me.

    The Cafcass Cymru complaints system sucks. The Ombudsman misinterpreted the Ombudsman Act and refused to investigate my complaint. They also, as do all that deal with children matters in Wales, broke the law. In May 2014 the Welsh Government made it law that all persons are to respect the UN Convention on children’s rights.

    Record, record, record.

  5. Yes absolutely . I attended a stage three complaints panel where all participants apart from the complaints manager were sent out of the room as the chairman was not coping. He continued to write what was dictated to him by the complaints manager for 15 minutes. Surprisingly my complaint was not upheld.
    I really do not see what the problem with recording is providing adequate measures are taken to actually secure the recording so it could not be tampered with.

  6. It does seem to me that accurate records of meetings and discussions are the bedrock of accountability. I come from a very different background-I’m a retired Inspector of Taxes- and I accept that the normal practise in fact finding interviews where both sides take notes, draft more formal reports and exchange them for comments so that all parties agree that this is an accurate record may seem onerous.

    But the one thing which unites practitioners is the awareness that the Courts do not take kindly to being presented with polished expositions of hugely complex legal issues when the parties haven’t established the primary facts.
    Obviously there are far more informal exchanges of information, but they are still fully recorded; the Caesar’s wife rule prevails.

    Given the advances in technology it should be possible for social workers to record discussions, meetings and the like to protect all parties, and the awareness that there are such records may well encourage people to be rather more aware not only that establishing the facts is vital, but also that misrepresenting the facts is likely to lead to unpleasant consequences.

  7. “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.”

    What about recording interviews between Cafcass/Social Workers and children when they do interviews for wishes and feelings or Section 7 reports? If you need a recording of what was said by parents, you certainly need a recording of what was said by the children! If you can’t trust Cafcass or Social Workers to accurately report what was said by an adult, who remembers the interview and is there in court to challenge it, how on earth can you rely on the reports of what children said when they aren’t in court.

    • I understand the rationale for suggesting it, but i think that children’s reactions are likely to be affected by such recordings. And concealed recordings raise their own distinct issues. So, I think that is more complex and more difficult.

      • Can you clarify the present position on how Cafcass/Social workers record the comments of children during interviews and discussions? Writing up notes afterwards is notoriously unreliable; with the best will in the world, most people don’t possess the sort of memories which enable them to accurately recall specifically what has been said even a few minutes later.
        This is not to impugn them of deliberate misrepresentation; the reason why such stress is placed on contemporaneous notes is precisely because we know from research just how bad we are, in general, at doing this.
        If the Cafcass/Social workers are making contemporaneous notes already then the children’s reactions are already being affected by it. I can’t see that using other methods of recording are likely to suddenly bring reactions into being; in these days of smart phones and Skype children may be less disturbed by videoing than by adults suddenly producing pen and paper to take notes.
        And if the adults are not taking full contemporaneous notes as a matter of course already then there is a real problem…

        • I think it depends on individual practitioners. My guess would be most write up shortly after or at the end of the day rather than during an interview. Some may take notes, but others use tools with children to record their views themselves. I would also hazard a guess that practice is widely variable. They are invariably reluctant to release their case logs!

          • Oh, dear.

            I retired prior to the changes in 2009, so I cannot speak to the present system. But when I appeared before the General and Special Commissioners I always had with me the contemporaneous notes relating to the points at issue, whether it was one of my cases or one of my colleague’s, and I would have been horrified to discover that there were no contemporaneous notes. The Commissioners would have been not so much horrified as incandescent, which is why I would not have taken such a case unless in exceptional circumstances disclosed to the Commisioners.

            I would be profoundly surprised if that working practise has changed, given what we know of the fallibility of human memory, even before we begin to take into account factors like unconscious or conscious bias.

            I hesitate to trespass outside my field, but it does seem to me that a reluctance to disclose case logs to Judges and officers of the Court is not conducive to confidence in the accuracy thereof…

  8. […] discussions about the pros and cons of recording interactions from the family bar, please see this useful post on Pink Tape.  There are serious concerns about recording children and a warning that this can […]

    • 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?

      In relation to your comment about this I recently came the Cafcass Operating Framework dated August 2014. In this document they specifically make reference to this point in paras 2.26 to 2.31 on page 14:-

      Covert recording

      2.26 Occasionally, service users may covertly record an interview or telephone conversation with a practitioner.

      2.27 We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.

      2.28 Some service users ask in advance of an interview whether it can be recorded. Advice on handling advance requests from service users to record interviews is available on the Cafcass Legal intranet page. In cases where no advance request has been made and the practitioner subsequently becomes aware that they have been recorded without their knowledge, they should tell the court. In some cases, however, the practitioner may not become aware of the recording until the service user presents the recording, or a transcript of it, at court. In such situations, the practitioner should make clear to the court that the recording was made without their knowledge. The practitioner may ask for the opportunity to
      listen to the recording or read the transcript before it is admitted into evidence, if the court is minded to take this step. It is a matter for the court to decide whether the recording or transcript can be included in evidence.

      http://www.cafcass.gov.uk/media/212819/cafcass_operating_framework.pdf

  9. Hi

    I am an individual that is going through the family court system (beginning stage).

    [edited – but you give an account of previous false allegations against you by your ex that had got as far as prosecution and acquittal]

    I downloaded an app at this time that records all my telephone conversations.

    [edited]

    I had not been able to speak nor see my children since last year as my wife countinues to play her games, etc. I know that she wanted our house to herself.

    I was recently able speak to my son on phone where he was being told what to say/do by his step grandad. I sopke to to the step grandad after and advised him that I did not appreciate my son being “controlled” whilst I was building a relationship with him.

    This call was being recorded, the grandad “hung” up the phone, but did not realise that I could still hear clearly all the convesations which was being carried out. I had guessed that my children were being “brain washed”, but was shocked to hear at first hand.

    I was being demonised, belittled to the children and also the adults (grand parents, my ex and her partner) arguing with the children when they were speaking up for me.

    Soory for the long one.

    I know in your article you say that it is “bad” to record children/advise against using this in court, however I dont know how to counteract against the poison that my children are being fed and also the various bodies/authorities that “believe” my wife as she is the mother/female”

    I would also like to ask, if it is wise/right to ask permission to use this recording as evidence? I am a LIP as I cant afford solicitors. I am also not the most articulate person and was hoping that these kind of evidence would support me.
    Thanks

    Michael

    • Hi Michael,
      I’ve edited your post as you will see – partly due to length and partly because it contained sufficient detail I think to make your family identifiable.
      I wouldn’t say it is always bad to record children but generally speaking it is one of those things that can be distressing for children and can back fire terribly.
      I can’t advise you about what you should in your case, not least because I haven’t heard the recording – but if you do decide to rely on the recording you will need to make it available to all parties, cafcass (if involved) and the judge in full and find a way of the date / time stamp being verified.
      Lucy

      • Thanks you Lucy for the reply

        I would keep the recording with the children to reminice (hoping) and to bring joy to me when listening back. I do not believe my children are aware of my recording the telephone conversations as they are too young and would never let them know or let them listen to it until perhaps they are of a mature age/adult.

        I dont know if my thinking is “wrong” here or that I am just justifying it to myself that it is okay because they are young and MY children, I certainly know I dont have an ulterior motive when speaking and recording the conversation with my children.

        I will certainly take your advise in that I will inform and make available copies to all parties involved if I decide to use. I will also post comment on here of how it affected the case if that is ok.

        Thanks,
        Michael

        • You’re in a very difficult position with recordings of your telephone calls with the children, imaging what your ex will say to your children if it’s discovered you’re recording them, she’ll tell them you don’t trust them, that anything they say is recorded and used in court to hurt mummy.

          It might convince the judge you ex is hostile, if they don’t already know that, but it will almost certainly be the end of any telephone contact.

          • Thank you for your replies Brian and Terry.

            My calls automatically get recorded even when I access voicemails, etc it then gives me the option to delete, save, etc

            I would never use or want to use recordings/conversation with my kids to gain advantage or prove a point in court because a) I regard my relationship with my kids as “private”, the same as I also would not “meddle” into my ex’s life by using/asking my children questions about their mother. and b) I would not lower myself to using such tactics

            However, what I do want to use and the court to hear is the events/conversations that took place after the phone was supposedly hung up. This was pure vile abuse against my children and me by my ex and her family. The fact that the line was not “dropped” and it carried on monitoring is not my fault. I had suspicions that my children were being “brainwashed”, but even I was shocked to not only have this confirmed, but also the extent of it.

            I do not want the mother taken away from the children or vice versa even though the mother and her family are and have been behaving despicably in my opinion, but I do want the courts, cafcass, etc to realise that the mother and her family are playing games at any cost just to suit them and not necessarily thinking of the children and also to refute my ex’s claims/allegations.

            On to Lucy’s article, I do believe as Terry that the laws and/or attitudes do need to change in the courts with all the technology available especially when there is only “he said she said”.

            Thanks

            Michael

      • Dear Lucy,

        I have visited your website and enjoyed reading through it – very informative – thank you.

        I refer to the case above, where a covert audio recording helped a man in Hackney and wonder if there are other similar cases where covert recordings have been accepted as evidence. If you have any details, I would appreciate if you would be able to give the case law examples, especially if they are in connection with family law, social workers, CAFCASS…etc.

        Many thanks for any help you may be able to give me.

        • There are. There is one recently involving a pakistani mother who recorded a racially hostile and abusive foster mother. I am in a bit of a rush and can’t remember the name now but I think you will find it on Suesspicious minds – try keyword pakistani, that might help narrow it. It doesn’t happen very often but courts do sometimes rely on recordings, including covert recordings. Take a look at the transparency project website, we have looked at this issue and are in the process of writing some guidance on the topic, but it isn’t ready yet.

    • Terence Grady

      Hello Michael, [edited]
      I feel for you and may they all burn in hell. If it does not go your way be patient and calm, hard when they are breaking your heart. We must all join together and get this family court system changed.

      Terry.

  10. […] Project members Lucy and Andrew had blogged about this question (see here  and here), and it was apparent from discussion at the conference that parents and social workers were […]

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