Re B (A Child)  EWCA Civ 1579,  All ER (D) 100 (Oct)
The child was the subject of private law proceedings between her parents. The father, in support of his case of deliberate alienation by the mother, sought to rely on covert recordings. The judge admitted the recordings, but concluded that little weight should be given to them. He made an order dealing with the substantive issues in the case and ordered his judgment be published on the normal terms. The father appealed against the order for publication. There were serious concerns about the judge’s approach to covert recordings, particularly that his guidance on applying for permission to rely on covert recordings had not been an exercise appropriately undertaken by a circuit judge. Accordingly, the Court of Appeal, Civil Division, allowed the appellant father’s appeal to the extent of setting aside the relevant part of the judge’s order that his judgment be published and, in its place, directed that the judgment was not to be made publicly available.
These were private law proceedings in which the father sought contact with his daughter. He wanted to rely on his various covert recordings of conversations that he had had with a social worker, a Cafcass officer and a solicitor. HHJ Bellamy invited a number of interested external bodies to make written submissions in relation to the use of covert recordings. The judge concluded that the recordings were admissible and relevant, but that little weight should be attached to them. The judge purported to provide guidance as to how covert recordings should be approached and ordered that his judgment be published. The father appealed, arguing first that the judge had shown bias in his treatment of the covert recording point, and secondly that the judgment should not have been published. That second argument arose out of the judge purporting to give guidance as to the proper approach to covert evidence.
The issues for the Court of Appeal therefore were:
whether greater weight should have been attached to the recordings
what level of judge could give guidance in a judgment
whether it was appropriate for the judge’s views as to the proper approach to covert recording to be disseminated on the internet, available to the professionals and all those advising parents, including McKenzie friends
The President of the Family Division, Sir James Munby, sitting in the Court of Appeal with King LJ, agreed with HHJ Bellamy that the recordings were relevant and admissible. It was a matter for the trial judge to decide what weight they should carry. However, the President did not agree with HHJ Bellamy that ‘…as a general principle, the Family Court should deprecate and strongly discourage such making of covert recordings,’ considering that to be sweeping, unnuanced and potentially misleading. The sorts of questions that might be asked included who was doing the recording, of whom and for what reason.
The President doubted that HHJ Bellamy was right when he stated that: ‘Anyone seeking to rely on such material
must…apply to the court for permission.’ That issue required more detailed analysis, including of the Family Proceedings Rules 2010 (FPR 2010), before the proposition could be said to be correct. That further analysis did not form part of the Court of Appeal’s judgment as it was, of course, yet to be carried out.
The Court of Appeal indicated that there are ways in which guidance for the family courts is formulated and disseminated. These included practice directions from the President, and the Family Justice Council’s issuing of
guidance, typically bearing the President’s endorsement. It was not part of the functions of a circuit judge to deliver such guidance. Nor was it appropriate for the judge to have devoted so much time and resources to ‘stimulate discussion’.
HHJ Bellamy’s judgment in relation to covert recording was open to serious challenge.
The Court of Appeal directed that the judgment of HHJ Bellamy was not to be made publicly available, whether on BAILII or elsewhere.
The Court of Appeal’s judgment necessarily leaves many questions unanswered, because the issue requires further investigation. However, referring to para  of the judgment of King LJ in the earlier permission hearing (Re B (A Child)  EWCA Civ 1088), the President approved HHJ Bellamy’s conclusion that such covert recordings as were made in this case were admissible, and that the issue was as to relevance. The President, agreeing with King LJ at B (A Child) para , stated that it was a matter for the trial judge, having seen and heard the parties give evidence and having heard the recordings in question, to determine the weight to be attached to any particular piece of evidence and to draw his own conclusions as to the correct interpretation of that evidence. The President did not accept that there was a general principle that the Family Court should deprecate and strongly discourage such making of covert recordings. The issue was more nuanced than that as it required consideration of who was recording whom and why. The correctness or otherwise of HHJ Bellamy’s view that the permission of the court is required before lawful, relevant and otherwise admissible evidence can be adduced, required more detailed analysis.
The President noted his intention to invite the Family Justice Council, a multi-disciplinary body and therefore particularly suited to undertake the task, to consider the whole question of covert recording from a multi-disciplinary viewpoint.
Technology has made covert recordings alarmingly easy for those of us who are concerned with our privacy. There is much discussion of the issue. Clients will ask their solicitors and counsel whether they can covertly record their meetings with professionals and others, handovers of children and contact itself. If they have already made recordings, they will want to know if they can use them in evidence. Advisers already need to consider the disclosure of all relevant material to the other parties. This will need to include any covert recordings. They will have to justify their use of covert recording by reference to the welfare of the child. The child’s welfare may be harmed by covert recording or it may be enhanced by it. There are examples of each in the cases referred to in Re B.
The response to the intended use of covert recording varies enormously from judge to judge. One judge might regard it as crucial, incontrovertible evidence, whereas another might fiercely deprecate it. Re B invites the Family Justice Council to consider the whole question of covert recording from a multi-disciplinary viewpoint. Until it does so, and until there is detailed guidance from the appropriate authority, there continues to be uncertainty about the obtaining and use of covertly obtained evidence, the matter currently having to be dealt with on a case-by-case basis. Little or no weight or value might be attached to covert recordings in one set of circumstances (particularly where they harm the welfare of the child), with its being a decisive piece of evidence in another. What is clear is that covert recordings are not automatically excluded from consideration by the court. The door is therefore open, but it remains to be seen what will successfully pass through it and whether it will be welcomed if it does so.
Farooq Ahmed specialises in matters affecting children, mainly care proceedings. In public law children work, he is instructed by local authorities, parents and children’s guardians in a wide range of cases involving physical, emotional and sexual abuse allegations, and in respect of contact and adoption issues. Appointed as a Recorder in 2000, Farooq is authorised to sit on civil cases, care proceedings and private family matters. He is also qualified to hear serious criminal cases in the Crown Court, including sexual offences and appeals. Farooq is a qualified arbitrator.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This article was first published on Lexis®PSL Family on 31 October 2017.