A covert recording is the recording of a person without their prior knowledge of the recording and consent to it being made.
Very often, the Family Court will not allow covert recordings of a child to be used as evidence in proceedings.
Covert recordings of a child will be considered by the Family Court to be hearsay evidence, and the court will therefore decide whether it should be admitted as evidence, and will take into consideration whether the recording is reliable, relevant and proportionate.
In deciding whether the recording should be admitted, the Family Court will consider the influence that the parent that made the recording has over the child, and the evidential strength of the recording can be undermined if that parent is considered to hold a strong influence over the child’s view or if their questions are considered to be leading. Consideration will also be given to the completeness of the recording, and that often, the context of a recording will not allow the Family Court to hear the full event that was recorded.
The Family Court will balance the usefulness of the recording as evidence against the abuse of privacy and breach of the child’s right to a private life. In some cases, the Family Court has decided that the parent’s act in making a covert recording is abusive behaviour in itself. The Family Court can even make a prohibited steps order to prevent the parent from making any further recordings of the child.
The Family Court is also mindful that, with advances in technology, recordings can be manipulated or edited relatively easily. The court may order the instruction of an expert to determine the authenticity, which will increase parties’ costs.
In short, the Family Court will generally not consider covert recordings to be admissible, and an attempt to rely on a covert recording may backfire and weaken that parent’s case. Where a parent considers that a covert recording would provide evidence in support of their case, legal advice should be taken of alternative and better ways for that evidence to be produced to the court.
If you need any advice on this matter please contact us on 0345 646 0406 or complete an online enquiry form, and a member of the team will be in touch.