In June, we made a raft of freedom of information act requests to each local authority in England and Wales. We asked them whether they had any policy in respect of parents’ recording meetings with social workers, or any plans to develop one. The results were really interesting. Eventually, we got 163 [EDIT by AT on 30.10.15 – now 166] responses, which is almost all of the authorities we asked.

The background

The background to the requests was discussion at the conference in which the Transparency Project was involved on 1 June 2015, and prompted by coverage of some instances of recordings by parents that had made the national press. See, for example, an article by Louise Tickle in the Guardian : Social workers under scrutiny as parents capture sessions on camera.

Transparency Project members Lucy and Andrew had blogged about this question (see here  and here), and it was apparent from discussion at the conference that parents and social workers were confused about what was lawful to record, when it was a good idea to record and what weight the court might attach to recordings if they were even admitted as evidence at all. The recent cases demonstrate that courts can and do admit such evidence in some cases, but we wondered what approach was taken by local authorities faced with parents who wished to record either covertly or openly – and whether there was any consistency.

Our position

We don’t think it is our role at the Transparency Project to advocate for or against recording by parents, but we do think that where it is an issue it would be helpful if there was clarity about what parents can expect the response to be, what benefit or harm it may do their case, and whether or not social workers (or Cafcass officers) who object to recording are doing so on a legally accurate basis. We are going to set out what we think the correct principles are in another post (there is quite a lot to think about), but in general terms we don’t think there is any blanket legal reason which prevents parents from recording meetings they are expected to participate in, or which requires them to obtain consent from other people (which is not to say you shouldn’t ask or at least inform people that you intend to record them as a matter of courtesy). Even though there is broadly no legal bar on recording, there are exceptions to that and there will be times when recording is not a good idea. We think it is important to distinguish between recording and use or distribution of recordings. Whilst we don’t think there is much in the law that prevents a parent from recording, the position is a lot more complicated when it comes to what you can do with a recording. Nothing we say in this post or our more detailed post will be “legal advice” – we think that individual cases will probably have individual answers.

So what did the responses tell us?

It is clear from the responses to the FOI requests that there is a range of quite different approaches between different local authorities. Many local authorities report having no policy on this, meaning there is a risk that responses to discovery of covert recording or to requests to record in individual cases will be inappropriate or based on a misunderstanding of the law. Quite a few local authorities responded saying they did have a policy, but when we read the policy it was very generic, often a case recording policy dealing only with recording by social workers (about 20 local authority responses). Typically, these policies did not even contemplate a circumstances where a parent might ask or attempt to record their meetings with social workers.

The vast majority of authorities said they did not have a policy (159) [EDIT by A.T on 30.10.15 – now 162], and of those most (127) [EDIT by A.T  on 30.10.15 – now 130] had no intent to develop one either. However, of the “no policy” gang, 11 said they gave advice on a case by case basis. A further 11 responded in one breath that they had no policy, but went on to describe how they would deal with the issue or the advice that would or had been given to social workers. (This sounds like a policy to us, it just isn’t written down, which again leaves families exposed to the risk the un-policy will be inconsistently applied).

32 of the “no policy” group said they were in the process of or planned to develop a policy. One or two said they had been prompted by our request to give this some thought for the first time, which is gratifying.

Only four authorities identified themselves as having a formal policy on topic. Of those we think two policies were based on an incorrect legal analysis.

Informal policies

Looking first of all at the authorities who said they didn’t have a policy but which appeared in fact to be operating an informal policy :

• East Sussex operate a ban on recording devices in ICPCs, based on the “Pan-Sussex Child Protection Procedures”,

• In Cardiff CPC Chairs routinely open with “The tape recording or video recording of any or all of this child protection conference is strictly prohibited. The child /children involved in this conference have not given their consent to any information being shared outside of this conference. Covert recording is in breach of the child / young person’s human rights. Please can everyone turn off their mobile phones. When you sign the attendance sheet you are agreeing to this condition of the conference”,

• Leeds say that a CPC Chair may restrict recording if someone may intimidate another, and refer to the Data Protection Act,

• Milton Keynes is said to have a “verbal policy” that recording is not permitted without the consent of the social worker and team manager,

• Newport also say that in CPC’s recording is not permitted without the consent of chair, and all participants are asked to turn phone off for CPC’s anyway,

• North Tyneside simply say “We wouldn’t encourage it”,

• Plymouth say they would “encourage consent before recording of any sensitive issues”,

• Rutland refer to ‘guidance’ that the social worker must permit recording and can terminate a meeting if there is covert recording,

• Southampton say they wouldn’t allow recording unless the security of the recording is assured and the consent of all is given,

• Sunderland permit recording only exceptionally for disability or on legal request and consent must be given in advance,

• West Sussex give a very long response for an authority with no policy, as follows :

1) West Sussex County Council does not have a specific social work policy or guidance on participant recording of conversations or meetings. Rather, this is managed on the basis of our duties and responsibilities towards a child/ren in line with:

a) The Pan Sussex Safeguarding and Child Protection Procedures (2015), Working Together to Safeguard Children (2015), The Children Act (CA) 1989 and 2004 and related law, policy and guidance including:
• Principles underpinning all work to Safeguard and Promote the Welfare of Children
• Working in Partnership with children, parent’s/carers and families
• Information Sharing and Confidentiality procedures
• UNCRC Children’s Rights 1990
• Data Protection Act 1998
• Human Rights Act 1998
b) Regulations or requirements would also differ depending on the legal and statutory status of the child e.g. as a child in need (Section 17 CA 1989) or a child in need of protection (Section 47 CA 1989) or a child looked after (Either under Section 20 CA 1989, Interim Care Order Section 38 CA 1989or on a Section 31 CA 1989 Full Care Order) or a child being placed for adoption or adopted (Children and Adoption Acts 2002 & 2006).
c) This means children and those with legal parental responsibility and their named advocates can make their own records in line with the above legal and procedural requirements. Those who do not have legal parental responsibility or significant links/responsibilities for the child would potentially violate various sections of the above laws and procedures if they made recordings of conversations or meetings.
d) Children subject to a child protection plan or are a child looked after would need the consent of the Independent Child Protection Chair or the Independent Reviewing Officer (IRO Handbook 2010 Gov.UK).
e) Any child currently subject to proceedings/hearings before the Family Court (Public or Private) would need the consent of the Court to ensure the child’s right to confidentiality.
f) This would also be covered under the Staff Code of Conduct and professionalism requirements.

As the issues of participant recording of conversations and meetings cross over with a range of law, policy and guidance and are dependent on the status of a specific child, we do not have a different policy or guidance, we refer to the existing relevant policy and guidance as above.

We’re not sure that all these responses are right. For example, the most recent version of the IRO Handbook doesn’t seem to say anything about consent for recording, and we aren’t sure why they say that the court would need to approve the recording of a meeting by a parent.

We have a hunch that there are probably a lot more areas where CPC or LAC chairs have some sort of restriction on recording meetings, but that perhaps not all authorities thought this fell within the scope of the question (the fact that 20 responses gave us policies that were about recordings of parents rather than by parents suggests that FOI responses may not always be dealt with very precisely).

Formal written policies

The two formal written policies which we were really worried about were from Barnet and Bradford.

1. In Bradford electronic recordings of Child Protection meetings not allowed, and it is said (wrongly) that “any unauthorised recordings are likely to breach the Data Protection Act and Human Rights Act”.

2.We are concerned that the Barnet policy does not give clear reasons other than the anxiety of social workers, and that there are risks that it will be interpreted by parents as deliberately hostile or obstructive, and that it will lead to social workers behaving defensively or to interpreting recording by parents (or requests to do so) as hostile acts by parents or as “failure to engage”. We are worried this might act as a barrier to good working relationships between parents and social workers. We’ve set that policy out in full below and marked the bits we are really worried about by underlining (bold is in the original).

Guidance Regarding Parental Electronic Recording of Social Work Visits and Meetings
It is increasingly the case that parents and carers are making recordings, both video and audio, of social workers. Recordings may be made openly or covertly. This can be intimidating and anxiety-provoking for social workers particularly when it is unclear how such recordings may be used.

The following are guidelines for responding to such situations. This list is not exhaustive, but is to assist you in being prepared and responding to such situations.
If at any time you feel uncertain about how to proceed, or intimidated by threats of electronic recording, consider terminating the visit in order to seek advice and support from your manager.
1. Be aware that you may be recorded during home visits and meetings and always act in a professional manner.
2. If the parent asks for permission to audio record a meeting, refuse politely and explain why this is not necessary. Offer to provide a copy of minutes to the parents, or suggest that they take their own minutes. 

3. Try to understand why the parents feel it necessary to record the visit/meeting and look for other ways for them to meet whatever need is identified. 

4. If the parent insists on openly recording a visit or meeting, state clearly at the beginning of the session that you do not give your permission to be recorded, and repeat at the end of the session that you did not give your permission for the recording to be taken. 

5. Always inform your team manager of any situations where you are aware that you have been recorded, or you suspect you may have been recorded covertly. 

6. Enter a casenote on ICS after any visit indicating that you suspect the visit may have been recorded. 

7. Managers should sent [sic] a written warning letter to the family repeating that no permission has been given for a recording to be made and asking the parents not to do this again. It may be helpful to offer to meet with the parents to explore why they feel the need to make recordings. 


Top marks

The following two responses were encouraging:

1.Gloucestershire County Council provided a policy which is well thought through and clear. It correctly identifies that a professional can’t object to an individual recording for personal use as this is not covered by the Data Protection Act, that even covertly obtained material could be used by individuals where it was about them, but that where a recording contains other people’s private information their consent should be gained, unless the recording is about a younger child and the person making the recording has PR for them and can make decisions in their best interests.
2.North East Lincolnshire also got it right on data protection, correctly identifying that it does not apply to individuals recording for personal use. They also say “In most circumstances, as an officer acting on behalf of the Council and providing the facts of the situation and the Council’s position, there should be no reason to refuse the recording.”
This policy does talk about “consent”, which we think is misplaced if it is insisted upon, but the intent behind the policy appears to be to make all participants feel able to participate in meetings fully – compare the tone to the Barnet one. So, they acknowledge that recordings may make participants uncomfortable, but do suggest alternatives, saying:

“As a result, rather than making a recording, it may be preferable to the officer to
a) arrange for notes to be taken which may be circulated and agreed afterwards. In the case of a meeting it may be suitable to have a neutral person present to take the notes; or
b) ask the individual to submit their questions or issues in writing, to which a written response will be provided.”

and they correctly identify that permitting a disabled person to record a meeting might amount to a reasonable adjustment.

Again, constructively, this authority suggest that :

“If it is agreed that a meeting is to be recorded, then it is advisable that the meeting is held in a Council office and recorded using Council equipment. Both parties would then be provided with a copy of the recording.”

CAFCASS also have a covert recording policy which some authorities referred us to, which is set out below for ease of reference [edit 26/9/15 as it no longer seems to be publicly available on their site link is here. it is contained in their Operating Framework document]:

Covert recording
2.26 Occasionally, service users may covertly record an interview or telephone conversation with a practitioner.

2.27 We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.
2.28 Some service users ask in advance of an interview whether it can be recorded. Advice on handling advance requests from service users to record interviews is available on the Cafcass Legal intranet page. In cases where no advance request has been made and the practitioner subsequently becomes aware that they have been recorded without their knowledge, they should tell the court. In some cases, however, the practitioner maynot become aware of the recording until the service user presents the recording, or a transcript of it, at court. In such situations, the practitioner should make clear to the court that the recording was made without their knowledge. The practitioner may ask for the opportunity to listen to the recording or read the transcript before it is admitted into evidence, if the court is minded to take this step. It is a matter for the court to decide whether the recording or transcript can be included in evidence.
2.29 Service users may also ask practitioners to listen to or watch recordings of others that they have recorded covertly. Such material may consist of:
A. A recording of a contact session with a child without the other party’s knowledge or the consent of the court;
B. A recording of a telephone conversation with the other party or another person;
C. A recording made by concealing a device on a child.
2.30 There are several considerations that should be taken into account by practitioners when offered such material:
A. There is a possibility that recordings may not be authentic, accurate or complete;
B. In accepting the recording, the practitioner may appear to be influenced by one party over another;
C. Once the practitioner has seen/heard the recording, it must be provided to the parties and the court, if it is relied upon.
2.31 If offered such material, the practitioner needs to be aware that whether it is admitted into evidence will be a decision of the court and there may be issues raised by other parties about the validity of the material. While it may be appropriate to read/listen to the recordings the practitioner should decline to accept it until the recording has been brought to the attention of the court and the court’s directions have been obtained.

We really like that policy statement, and it correctly identifies the potential evidential fairness issues associated with recordings.

Conclusion

So, in summary, our responses have demonstrated that the vast majority of authorities have given this no or no systematic thought, which leaves parents at risk of being inappropriately refused or criticized for recording or attempting to do so. And whilst there are legitimate anxieties associated with recording – for example the risk of partial recording or editing giving a misleading impression (see CAFCASS policy), or the risk of dissemination of private information or use of recordings for harassment or naming and shaming (we think this might be what’s behind the Barnet approach for example, although it is not completely clear) – some policies do seem able to cater for such issues. A small but concerning number of local authorities seem to be very “anti” recording, and back themselves up with policies (most often informal) that are probably not very legally sound.

Now we’ve carried out this FOI request, we are planning to draw up a protocol on the topic for use by local authorities considering updating or creating a policy on this topic. And we’d like to set out some guidelines for parents who may be considering making recordings to help them understand what the rules are, what the possible difficulties associated with recording are, and whether what they are told about recording not being allowed is likely to be accurate.

That will take us a little while to work up, but we’ll update this post once it’s done.