The Court of Appeal delivered judgment in Re B (A Child) [2017] EWCA Civ 1579 last week. In it they consider (but do not resolve) the question of how the Family Court should deal with evidence obtained by covert recording. Whilst it took the Court of Appeal almost a year from the hearing of the appeal to the delivery of judgment (see our post about the appeal hearing itself here), this particular potato remains red hot. The topic of recording – covertly or overtly, of social workers or children or otherwise – is discussed daily on private groups on Facebook, openly on other social media platforms – and, from time to time, in judgments of the Family Court and by lawyers.

This has been on our radar for some time. In 2016 we published guidance in respect of one aspect of the recording debate – the recording of meetings between parents and social workers (see here). We were careful to distinguish between this type of recording and the recording of children. Recording is a particular source of anxiety for some social workers, who complain about it on social media, whilst others embrace or at least acknowledge that it is legitimate and understandable, given the power dynamics at play. From social media, we can see that parents are still regularly told that it is “illegal” for them to record meetings they are attending with social workers. It isn’t illegal, and they shouldn’t be told it is, but it’s more complicated that what is strictly ‘legal’, as we explain in our note. Sarah Phillimore has been gathering views and experiences on this topic and will be writing them up in a separate post shortly.

In March of 2016, at the request of HHJ Bellamy (the original judge in Re B), we made brief written submissions on the question of covert recording in the Family Court. Our submissions were entirely theoretical, as we knew nothing of the case in which the issue had arisen. Many months later, we were told the matter was on appeal and a TP member attended the appeal hearing. It was only then that we found out a little about the context in which our submissions were called for – a private law case in which a parent had made recordings of a professional.

Since then, we have wondered what had happened to the judgment of the Court of Appeal, which seems to have been delayed by other priorities. We now have that judgment and can see that HHJ Bellamy is subject to some criticism for overstepping the mark in trying to give guidance on the topic. As a circuit judge, in expressing a wish to “stimulate discussion” on this topic, HHJ Bellamy was taking a step too far, said the Court of Appeal. That may be right as a matter of judicial hierarchy and function, but of course we are always pleased when debate in such areas is stimulated. Whatever the views of the Court of Appeal, back in the real world HHJ Bellamy has at least achieved his original objective of stimulating debate – because the issue is now being talked about in the legal press, as well as on online parents’ groups. Even the Court of Appeal acknowledged his intervention was “timely and useful“, saying that :

What Judge Bellamy’s endeavours have usefully demonstrated, in my judgment, is the need for consideration to be given to what is a topic of growing significance for family courts in relation to which there is, at present, surprisingly little authority and no adequate guidance. In that sense his intervention has been both timely and useful. I propose therefore, as a first step, to invite the Family Justice Council, which as a multi-disciplinary body is particularly suited to undertake the task, to consider the whole question of covert recording from a multi-disciplinary viewpoint. It will no doubt wish to consider the various documents annexed to Judge Bellamy’s judgment as well as all the other materials I have referred to. There are also interesting discussions to be found on the blogosphere – for example, in the Suesspiciousminds and Pink Tape blogs; no doubt there are others – which merit careful consideration.

In his judgment, the President of the Family Division signalled that he understands only too well why this is a pressing issue :

[it] has to do with the widespread distrust in too many quarters of the competence or even the integrity of the family justice system and of the professionals involved in it. Here, of course, it is the existence of the mindset rather than its foundation in reality which is the driving force. But it does give rise to important questions of public policy:

And, he said :

it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.

The judgment also touches on the fact that different issues arise depending on the type of recording – covert / overt, by the state or by private individuals of one another or representatives of the state. The judgment refers to our guidance note on the topic of parents recording social workers.

Until now, we have been unable to publish our submissions, even though we think they are a useful summary or starting point for thinking about the issue. Now that the case is over, we have been permitted to publish them, although of course they have no judicial approval (and may be entirely wrong!), but we hope that they will aid further debate. The President’s invitation in his judgment asking the Family Justice Council to consider this issue represents an opportunity for some clarity to be brought to the question of how such recordings should be handled from a procedural and evidential law perspective, but it also represents an opportunity for the underlying issues to be explored and reflected upon – why is it that parents increasingly feel that this is a necessary protection? We hope that the FJC will address both, insofar as it is able.

You can read our submissions here. If and when the submissions prepared by other organisations are published, we will add a link in this post. [update : Read the Association of Lawyers for Children’s submissions here. They take a somewhat different angle from us, focusing more on procedure whereas we focused on the law.]

What you won’t be able to read, however, is HHJ Bellamy’s own judgment. Whilst the submissions can be published, the judgment cannot. The Court of Appeal wrestled with how to deal with the publication of a judgment containing purported guidance from a judge who did not have authority to issue it – considering: publishing with a health warning; publishing part; or publishing none of the judgment – and ultimately decided against publication. It is unusual for a judgment not to be published because the judge has got something wrong – the publication of the judgment of the appeal court explaining it was wrong would usually be sufficient to ensure nobody was misled by it. But it appears that there was concern that aspects of HHJ Bellamy’s guidance might be seized upon to plug the gap where there is no “proper” guidance, and particularly about the risk of misuse or misinterpretation by Mckenzie friends (of which there were two in this case) or litigants in person. The Court of Appeal said :

This [publication of the judgment] would be particularly unhelpful, indeed pregnant with future uncertainties and difficulties, as my Lady has suggested, in a field where so many of the issues seem to arise in the Family Court, often in cases involving litigants in person and McKenzie friends for whom the judgment might be confusing, indeed, positively unhelpful.

The Court of Appeal also considered publishing its own guidance, but felt that this was difficult when the case could not be fully argued by lawyers. Hence the referral to the Family Justice Council.

We would welcome comments on this post or guest contributions about the topic of covert recording. Please email info@transparencyproject.org.uk.

Feature Pic : secret by Melanie Innis on Flickr (Creative Commons licence – thanks)