Earlier in 2016, The Transparency Project, along with the Association of Lawyers for Children and others, were invited by His Honour Judge Bellamy (Designated Family Judge for Leicester) to make written submissions to the Family Court regarding the question of covert recording. This followed the publication of our Guidance Note on the topic of parents recording meetings with social workers. We didn’t have any details of the case before HHJ Bellamy, but were asked to respond to a question of principle, namely :

Is it appropriate to admit covert recordings of professionals or others within family proceedings?

The case was decided in the summer, but went on appeal to the Court of Appeal. Until now we didn’t really know what had happened.

We don’t think its appropriate to publish our submissions whilst the appeal is ongoing, but we expect to be able to do so in due course. They aren’t very long, just a few pages, and simply explain the applicable court rules and law of evidence.

On 10 November Lucy Reed went to the Royal Courts of Justice in London, to hear the appeal being argued. This blog post is primarily about that hearing. Judgment has been reserved, but the transcript of the permission hearing before King LJ was, unusually, released for publication as it was extensively referred to in the course of submissions. It isn’t yet on BAILII but you will be able to find it there shortly as [2016] Re B (A Child) [2016] EWCA Civ 1088. For those who subscribe, there is a brief Lawtel report published this morning. [ Update, judgment is here on BAILII]

We thought it would be interesting to tell you a little bit about the hearing. It is an unusual experience for a practising barrister to be present in court but not participating, and one notices rather different things than when presenting a case to a judge. The President was sitting as part of a two-judge Court of Appeal, with Lady Justice King as the second Judge. She had dealt with the permission hearing in September. The case was being heard in The President’s Court, Court 33. On arrival I noticed that the door was marked “no attendance by the media”. On checking, the usher confirmed that this was a sign relating to other hearings that he was just about to remove, as the appeal was in open court (as is usual in the Court of Appeal). Phew. First hurdle surmounted.

The appeal was brought by a father, unhappy with the outcome of proceedings relating to his daughter. In the usual way, the Court of Appeal sat in open court and so we were able to sit in and are able to report what took place, subject of course to ensuring anonymity.

The President’s court is a high ceilinged, wood panelled court with creaky benches and poor acoustics. There was a lot of noise from the corridor and from helicopters outside and it was difficult to hear from the back. Unusually, the court room was stiflingly hot. Before we began, the barrister acting for the child came to check who we were in the back of court, although the hearing was of course in open court so anyone could attend. The father and his McKenzie friend, Mr Graham, sat silently waiting for the hearing to begin. Minutes passed. Various law reporters and journalists wandered in and out of court in a fairly relaxed way, assessing whether or not it was worth staying (two left, one stayed). I chatted to a young woman from Lawtel who explained that with family cases it’s a bit hit and miss, because they don’t have the judgment in the case being appealed from and they know nothing about the case. She thought better of it and left (although someone from Lawtel gathered enough information to be able to report a short summary this morning so perhaps she snuck back in behind me). At one point a man I think I recognise as the Tipstaff (high court enforcement officer) popped in, looking for the President’s clerk. There were one or two other people in court who may have been members of the public or possibly connected with the father. The associates began to get ready, each bringing in a bundle of papers for “their” judge, through “their” door. Then the doors were opened, court staff peered expectantly up and down the judicial corridor. At one point the President, not yet robed, could be glimpsed passing across the open door past rows of old paintings and prints of judges of the past. And after some time both judges came in, robed in the unfussy modern Court of Appeal dress.

The hearing was run with notable and consistent courtesy by all those involved. At the outset, the President set out some ground rules about the scope of the hearing and what could and could not be covered. The father’s McKenzie friend was granted rights of audience and addressed the court at length, including on areas where the father had been refused permission to appeal. He was politely but repeatedly brought back on point on a number of occasions, and increasingly firmly corrected when he misquoted or was imprecise in his summary of something in a judgment or other document (often misquoting what Lady Justice King had said at the earlier hearing, the transcript and judgment of which was available at court to check). The father read a pre-prepared speech, and the court heard briefly from the barrister for the child. The mother was unrepresented, and did not attend the hearing. There was a certain amount of handing up of missing documents, that had either been lost by the Court or which the Father and his team had referred to but weren’t in the bundle.

After retiring for a few minutes, the judges returned and announced that they would reserve their judgment until a later date, as the appeal raised important matters that they needed to deal with in writing. The President said that the earlier judgment would be published, unusually, and provided a copy to the law reporter at court. The hearing took the best part of a morning, and one can’t help but think that if the father had been represented it would have been much quicker. The Court was very careful to allow him to make his arguments fully and at his own pace, but much of what was said on his behalf was a direct attack on aspects of the judgment that he had been refused permission to appeal about.

When we wrote our document some months ago at the request of HHJ Bellamy, we didn’t know anything about the case at all. As a result of the hearing we attended we now know a lot more about the context and the purpose to which our document was to be put.

The case itself is interesting. if sad. It relates to a girl, now 11. HHJ Bellamy had dealt with the latter part of proceedings which had been begun originally in 2013, and resumed in 2015. The father had sought to rely on covertly recorded evidence which, it was said, demonstrated the incompetence, malpractice or dishonesty of various professionals. It was in deciding whether to admit this evidence (which the mother objected to) that HHJ Bellamy had asked for external input, and we found out in the course of the appeal hearing that it had been the father who sought our input in particular – although we knew nothing of this or the case at the time and commented on the principle only.

In the event Judge Bellamy had admitted the evidence, but placed limited weight on it and perhaps interpreted it in ways that the father did not welcome. The father alleged parental alienation, whilst the judge laid some blame at the door of each parent. The father alleged a failure of the family justice system and sought to challenge the findings, and the refusal to persist with attempting to reinstate direct contact. He argued that the judge was biased and had become distracted with the covert recording point. Lady Justice King had refused permission to appeal in respect of the findings and the substance of the judgment, but had listed the hearing on 10 November to consider the father’s objection to the publication of the judgment on the grounds that it would have an adverse impact on the child, and to consider whether or not HHJ Bellamy should have taken the path of giving guidance on covert recording.

The court heard full argument from Mr Graham, the father’s McKenzie friend, in the course of which he rehearsed all the arguments about the basic flaws in the judgment, professional misconduct and incompetence and judicial bias, and although the Judges went to some lengths to explain that the Court of Appeal had exhausted its powers to interfere with the substance of the judgment, having declined permission to appeal on that point, it was the main theme of submissions from the McKenzie friend. It was suggested that the case should be subject to review as an example of system failure, by the Family Justice Council or the President or a High Court judge and that the President had some power to make this happen. The President said that

“there seems to be an impression abroad that because I am the head of the Family Division and of family justice I have some overarching right to intervene in a non-judicial capacity. I  have no such right. It would completely subvert the normal processes…the idea that a judge, because he is the head of division of the High Court or head of family justice has some general power to intervene in any family case and pull it in has no foundation in law, principle or practice” [near verbatim]

On behalf of the father it was said that a document (unidentified) gives the impression that the President has the power to order a direct transfer of proceedings to himself and we expect this to be subject to further clarification in the judgment, when the father has submitted the document referred to. We haven’t seen this particular mckenzie friend myth on parents’ support forums, so we don’t know how widespread it is – but we thought it would be useful to set out the President’s response to it.

On the question of publication of the judgment, the father argued that the judgment ought not to be published because it would give the child a distorted view of her parents and of how it came to pass that she was not seeing her father. This was based upon the father’s version of events, which the court has rejected. The interesting argument was that the father argued that it was the antithesis of transparency to publish an incomplete and inaccurate judgment (he complained that it did not rehearse his viewpoint and arguments or fully set out the evidence heard). This is, we think, an interesting application of the notion of transparency – which we have never heard deployed in support of non-publication. There was surprisingly little focus on the fact that children are often provided with judgments on request when they are older, regardless of whether or not they are published. CAFCASS or NYAS for example, usually keep a copy on file, to assist a young adult in understanding their background in later years. In this case it was said that the mother has a copy of the judgment, so it may be shown to the child at some stage in any event.

The question of whether or not HHJ Bellamy ought to have strayed into purporting to give guidance on the question of covert recording, was touched upon, but King LJ had already expressed some fairly robust views about it in her judgment at permission stage, saying

The judge took the opportunity of inviting a number of interested bodies to make written submissions in relation to the use of covert recordings of interviews and telephone conversations with practitioners. Such an invitation was neither necessary nor relevant to the decision to be made by the judge, and on his own account was intended “to stimulate discussion on the issue out of which perhaps some general guidance might emerge”. Mr Graham points out that some 20 pages of what is a lengthy judgment was concerned with  a consideration in the abstract of the use of covert recordings. Mr Graham submits that such an approach was unhelpful and inevitably gave the father the impression that the judge was not focused on his particular case.

It is unfortunate that judge’s interest in the wider issues thrown up has now been interpreted as judicial bias by the father and I can see how the father may have reached the conclusion that the judge had become over-concerned with the wider issues in relation to the use of covert recording. Happily, however, the judge dealt in a discreet passage within the judgment with the issue that relates solely to this case in relation to those covert recordings. In an exemplary passage, the judge concluded that the father should be permitted to rely on the recordings, not withstanding the mother’s objections and NYAS’s expressed neutrality. The judge rightly concluded that such recordings were admissible and that the issue is as to relevance; the judge accepted that those recordings are relevant in the context of the father’s case, not least in relation to his assertion his assertion that the mother has deliberately alienated SB from him.  At paragraph 119, the judge set out in five numbered paragraphs why he concluded that little weight should be attached to the recordings.

In my judgement the judges analysis cannot be criticised and it is a matter for the trial judge, having seen and heard the parties give evidence and having viewed the video 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. I note that whilst expressing his disapprobation of such covert recordings, the judge nevertheless referred to  certain cases where they have had a significant effect on the outcome of the case.

The recordings were but part of a much larger evidential picture. And were not as Mr Graham seeks to persuade the court effectively determinative of the case….

it seems to me, however, that there is a further important issue to consider which leads me to conclude that pursuant to CPR 52.36(b), there is some compelling reason why the court should hear the full appeal in relation to the question of the publication of the judgment.

His Honour Judge Bellamy, a circuit judge, has purported to provide guidance as to how covert recordings should be approached in this very difficult area: he gave the guidance in circumstances where he had neither the approval nor endorsement of those guidelines by the President of the Family Division, nor had they been considered by the Law Commission, or rules committee. There is, in my judgment, an important issue as to whether in those circumstances it is appropriate for the judge’s views as to the proper approach to covert recording to be disseminated on the internet, available to the professions and all those advising parents, including McKenzie friends. 

So the Judge got the answer on covert recording right, but possibly didn’t need to bother with the “consultation” to decide the case. We don’t know what the Court of Appeal will ultimately say about this, but from the above extract it seems possible that our submissions will never see the light of day to avoid confusion about the status of the guidance. This would be a shame, because HHJ Bellamy’s stated aim of stimulating discussion is very much in line with our charitable objectives. The fact that a judge has got something wrong or overstepped the mark is not usually a reason to prevent publication of it. We cannot of course comment on whether or not it was appropriate for a circuit judge to seek to stimulate discussion in this way, but no doubt the Court of Appeal will tell us soon enough. The judges reassured the parties present that they would have well in mind the Article 6, 8 and 10 rights (fair trial, private and family life, freedom of expression) of all involved when making their decision.