HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON

INFORMATION ON THE USE OF RECORDING IN FAMILY PROCEEDINGS

RESPONSIBILITY OF A LITIGANT IN PERSON

Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.

This information is an overview on the use of recording in family court proceedings.

Use of Recording

There are various situations where someone might feel the need to make a recording. In meetings with professionals (e.g. Children’s Services, school staff or Cafcass), parents may feel they need to have an indisputable record of what was said:

• The parent might be unable to read or write, have a poor memory or difficulty concentrating (e.g. when stressed or due to a disability).
• It can be difficult to fully participate in a meeting, when trying to handwrite or type notes at the same time.
• A parent may simply not want to rely on other people’s notes and want an objective record of their own. Even where minutes are taken, there can be a delay in their circulation. Parents can also find it difficult to get corrections made, especially where others at the meeting have a different recollection of what was said.
• A lack of trust may have developed, with a particular professional or with professionals in general and the parent feels that a recording is necessary to demonstrate that their version of events is accurate. For example, social work records often include notes from conversations with parents, which can be treated by professionals as conclusive because they have been made by someone in authority.

Use of recording in family disputes

In private family disputes, a parent may also wish to have a record of what happened:

• A parent may feel it necessary to create a record of what was said and how things went during handovers for contact between one parent and the other.
• Lack of trust between parents may lead to anxiety over allegations being made against them, particularly if this has happened in the past.
• A parent may be trying to prove breach of a court order.

Recording a child

The appropriateness and value of recording children depends very much on the circumstances and nothing in this note should be taken as suggesting that children are recorded making allegations or expressing views except in a controlled environment and under the supervision of appropriately qualified professionals.

Recording in court is prohibited

It is a contempt of court to record court hearings, unless the court has given permission.

Recording as evidence

Your barrister can provide legal advice and guidance on the use and preparation of evidence of recording in your case.

Under the family law rules, the court can control the nature of the evidence that it requires, as well as the way in which the evidence is to be placed before the court. The court can therefore choose to exclude evidence, including recordings, but should give clear reasons, so that an appeal court could understand why the decision was made and what factors were taken into account.

Some concerns the Court may have about allowing covert recordings into evidence include; inaccuracy, lack of context, failure to provide a copy of the original recording and the potential impact on the child when they find out they have been recorded.

The Judge will need to make decisions about the admissibility of covert recordings on a case-by-case basis.