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It’s unusual for a judge in a children law case to commence a judgment with an important statement of principle. This is a particularly good one that bears repeating and sets the scene perfectly for our blog this week:

“It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.”

By way of background, the case involved a family where a girl of late primary school age (“Tara”) lived with her dad and his partner, and the court was considering whether she would go back to live with her mother. It was a long-running and highly contentious case – unusually, the child had a social worker and a children’s guardian involved, and there was also a family support worker. The father claimed that he did not understand why his daughter was so reluctant to spend time with her mother, and was worried that she might have been abused.

In order to find out what Tara was saying to the professionals involved in the case, the father’s partner bought some small recording devices and sewed them into the pocket of the girl’s school blazer and her raincoat. On days when she was meeting with people involved in her case, these bugs recorded everything she did and said, with her friends, her teachers, her mother, and everyone else she happened to meet. Other meetings were recorded by iphones and ipads left in the rooms where meetings were being held. The father and his partner listened to all of the recordings and they transcribed what they considered to be relevant material. This happened regularly over the course of a year. At the court hearing this extended to over one hundred pages; the court said it disclosed not a single piece of useful information.

The mother, for her part, commented that the father’s bugging of their daughter was “really disturbing”. There was also evidence that the father had carried out surveillance on the mother, and allegations that he had accessed her private information.

The court set out the impact of the father’s behaviour as follows:

“i) It further damaged relationships between the adults in Tara’s life. 

ii) It showed the father’s inability to trust professionals.

iii) It created a secret that may well affect Tara’s relationship with her father and step-mother when she comes to understand what has happened. As I said:

“She is also at risk of harm arising from the recordings. I accept the Guardian’s compelling assessment that it would be extremely damaging for Tara if the information comes to her in future in some uncontrolled way, something that is likely to cause her confusion or distress and seriously affect her ability to trust people.

I also accept the Guardian’s analysis that the safer course is for Tara to be informed of the facts in a sensitive way in the relatively near future, once the immediate aftermath of this hearing has passed. There then needs to be a concerted effort by the family and the professionals to make sure that the information is contained within the group of people who will need to know it in order to carry out their statutory responsibilities. The consequences for Tara and her whole family of the father’s behaviour coming to wider knowledge could be very serious, with unpredictable social and legal outcomes. However, the alternative – a conspiracy between those in court and the court itself to keep the matter secret from Tara and everyone else – is unacceptable in principle and unworkable in practice. It is a problem that needs to be faced and that is best done at a time when Tara is surrounded by professionals who know her situation and are well placed to help her make sense of it.”

iv) As indicated, the family’s standing in the community has been put at risk. It is not hard to imagine the reaction of other parents at the school if they learn that their children were being recorded as a result of talking to Tara or even being near her, and the consequences of that for the father and most of all for Tara.

v) It involved an enormous waste of time on the part of the father and his partner in setting up the recordings and in transcribing them.

vi) It significantly escalated the cost of the proceedings. The father had to pay to have the recordings transcribed (£1,500) and on top of that I ordered him to pay the proportion of the mother’s costs attributable to time spent on the recordings (£9,240). At the same time, there is an issue about whether the family can afford to pay Tara’s school fees.    

Anyone who is considering doing something similar should therefore first think carefully about the consequences.”

The big issue in the case was whether the father and his partner were sufficiently able to meet Tara’s emotional needs. Having considered all the evidence, including the making of the recordings, the conclusion was that Tara should from then on live with her mother.

This was an epic lapse of judgement from the father. It should serve as a warning to other parents, and in fact anyone involved in family proceedings, that any apparently brilliant ideas that are even a little bit dubious in moral or legal terms should be given a very wide berth. The judge observed in this case that “Experience suggests that such activities normally say more about the recorder than the recorded”. The father has paid a high price for his actions here. There may be worse when his little girl finds out what he did.

If you have any questions about what you’ve read here or any family law issue, you can call us on 01223 443333 and make and appointment to speak to Tricia, Sue, Gail, Adam or Simon.

 

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