It is well known by family law practitioners that particularly in intractable disputes, parties will go to great lengths to prove 'their side' of the story. In circumstances where it is one person's word against the other, sometimes they feel the only way to prove or disprove a point is by making a covert recording, whether it be of a discussion, telephone call or argument.This has become a concerning practice, particularly when children become involved and are included in these recordings, be it knowingly or unknowingly.
Technology now enables most people to make recordings via their mobile phones and thus the ease with which covert recordings can be made has increased exponentially. The difficulty then for the Court and for solicitors is how to deal with these when it transpires that such recordings have been made by one or both parties.
As it stands there is no protocol as to what weight is to be attached to any recordings brought before the Court, nor how such recordings should be treated. In circumstances where a covert recording clearly disproves a serious allegation then of course this is likely to be of assistance to the Court, but in circumstances where recordings are staged or contrived to support one party's case, clearly these will not be helpful to the Court and in certain circumstances may be emotionally damaging to any of the parties (including children) involved. In these types of cases it would therefore seem prudent to regulate the ability to submit such recordings.
if all recordings are given equal weight it will open the floodgates for parties to consider it appropriate to make recordings whenever and however they see fit. However, if all covert recordings are simply deemed inadmissible this may prevent someone from using the only evidence available to them to refute a serious allegation or an assertion that could have a significant impact on their case.
The simple fact is that there needs to be further guidance on this issue in order to regulate the use of covert recordings within family law disputes. We will need to wait and see whether this is forthcoming in the near future.
Many of those involved in the family justice system have spent the best part of the past 20 years trying to persuade parents to find other ways of resolving disputes about their children than facing off in court. There have been some successes — mainly because the removal of legal aid in all but a small number of cases has priced the court system out of most people’s budgets. But a significant number of disputes remain intractable, and can be resolved only by judges making decisions that everyone has to live with. Often the greatest difficulties that judges face in such cases is that the evidence comes down to the word of the parents: allegations of bad behaviour, either to each other or to — or in front of — children.