In recent years there has been an increase in the use of smart phones and technology that allows recordings to be made on devices that can be easily concealed. When representing parties in family proceedings we are often asked ‘can secret recordings I have made be used as evidence in my Court case?’
If you have made any secret recordings or are considering making secret recordings, for example conversations between your child’s guardian, social worker, or legal team and want to know whether they can be used to assist you case it is important you obtain expert legal advice, here at Emery Johnson Astills our care team are here to help.
Parties sometimes record conversations between themselves or others which they think will help their case.They then want to use the recordings in the proceedings to show the Judge what is really going on.
It is likely that as these recordings have been made in secret the other party/parties will object to these recordings being used in the Court proceedings and an application will need to be made for the recordings to be admitted into evidence.
What does the law say?
Section 13(4) of the Children and Families Act 2014 states that sharing of recordings of children should rarely, if ever, be admitted as evidence. It may be admitted as evidence if the Court gives permission. An application for this permission needs to be made and the recording/s should be made available to other parties before any hearing to consider whether the recording should be admitted as evidence.
The Association of Lawyers for Children (ALC) has made submissions on the use of secret recordings in Family Court proceedings. The guidance on the use of secret recordings includes -
- The desirability of securing agreement to the recording being admitted as evidence
- To distinguish between whether the recording is of children and adult parties or professionals
- To include a warning on the sharing of the recording that would identify children subject to proceedings
The ALC also suggested that where possible the application for permission to submit the recordings needs to be submitted in writing on an application form.
What should the Courts consider?
Before deciding on whether the recording can be admitted as evidence to the Court there are a number of things the Courts should consider:
- The circumstances in which the recording was made
- Whether the Court and the parties have been given proper notice of the application and the details
- Where the recording is of a child or includes a child, their wishes and feelings need to be considered
- Whether any effort has been made to secure agreement to the recording being made
- Whether there is anything arising from the circumstances in which the recording was made
- Whether the recording was made in order to obtain evidence relevant to an issue in the case
- The substance of the recording
- To what issue in the proceedings is the substance of the recording relevant
- Whether the recording is a complete recording of the meeting
- Whether any necessary investigation to satisfy the Court as to whether it is proportionate and necessary to resolve the proceedings has taken place
- Whether the party seeking to use this recording should give an undertaking restricting publication of the evidence.
Here at Emery Johnson Astills, our focus is on client care and ensuring that we assist and support every client from initial advice through to Court proceedings. If you have made any secret recordings and want to obtain expert legal advice as to whether this will assist your case please contact the a member of our care team on 0116 255 4855 or by e-mail firstname.lastname@example.org