Taped: Parental Disputes and Covert Recordings 

Published on 21 October, 2017 | Katie Dillon

Social media is generally thought to be a boon.

It has enabled friends, family and colleagues living great distances apart to keep in touch and, in fact, helped put individuals who’d lost contact back together.

There are critics, however, who argue that one of the consequences of the volume and type of material shared via apps and websites is a reduction in the amount of privacy which we all have.

The logic runs that public pronouncements are not confined to major events such as births, marriages or deaths but the minutiae of every day life.

Everything from shopping lists, the morning cuppa or musings on the bus to work are circulated.

It’s perhaps no surprise that technology which facilitates such communication not only features in positive relationship exchanges but then things go wrong too, deliberately intruding on family exchanges.

Back in April, my colleague Laura Guillon spoke to the Daily Mail about the frequency with which separating spouses were relying on subterfuge – using bugging devices and accessing e-mails – to try and gain the upper hand in their divorces http://www.dailymail.co.uk/news/article-4457438/Divorcing-couples-read-s-post-risk-jail.html.

Now, the most senior family court judge in England and Wales has noted that such behaviour is increasingly common in children’s proceedings.

The comments of Sir James Munby – who, in addition to being president of the family division of the High Court, is also a Court of Appeal judge – came in a written Court of Appeal ruling on a case in which a father involved in a children dispute with his former partner had recorded both a solicitor and social worker https://www.thetimesbrief.co.uk/users/39175-the-brief-team/posts/21373-divorcing-parents-using-secret-recordings-in-battle-for-custody-says-judge. 

Sir James concluded that the practice – which, he said, included the recording of children, other family members and professionals – was “a topic of growing significance” and, from my own experience, he is quite correct to say so.

Even despite express warnings from myself and my colleagues about the do’s and don’ts of children’s proceedings, more parents appear to be resorting to making recordings in the hope that they can influence the outcome of a case.

I suppose that, to a degree, one can understand why they might be driven to do so. They want to justify their position and, in the absence of any definitive proof, disagreements can boil down to the word of one person against another.

Making a recording is also far less conspicuous than it might once have been. Thanks to a myriad of smartphone apps and the portability of devices, there is now no need for huge reel-to-reel tape recorders or bulky video cameras.

Taking that step to press ‘record’, though, represents an enormous risk and can backfire.

In one case, a court regarded a recording as indicating more about the conduct and mindset of the person making it than the individual being recorded.

Many of those audio and even video recordings which are deemed admissible are included in cases because they can be used to show how those recording events are not child-focused during discussions in which the best interests of sons or daughters should be paramount.

Of course, determining which parent a child lives with or the rules governing the time which divorced or separated parents spend with children are incredibly emotional and those emotions cannot always be controlled as they should.

Nevertheless, I always suggest that, instead of giving in to the temptation to record, parents keep their ‘phones in their pockets and simply….pause.

It is preferable to keep a clear head and even make a clear contemporaneous note of events – such as discussions with kids or counsellors – than commit them to tape.

Once that happens and that material is disclosed, it is impossible to rewind and what might be life-long consequences for parents and children alike cannot be erased.