In the recent case of Re B (A Child) [2017] EWCA Civ 264, the father of a girl, aged 11, in alleging that the mother had been deliberately alienating him, sought to rely on covert recordings of conversations with various parties, including a social worker, a Cafcass officer and a solicitor.

In the first instance, his Honour Judge Bellamy considered the use of covert recordings in proceedings, and concluded that the father should be permitted to rely on the recordings and as such, the recordings were admissible. The father appealed on two grounds:

1. The circuit judge’s treatment of the recordings which he believed      demonstrated bias;

2. That the judgment should not be published, as ordered.

The appeal came before Sir James Munby, President of the Family Division, and Lady Justice King at the Court of Appeal in November 2016 where Judge Bellamy’s judgment, and the wider issue of covert recordings were considered.

Of the issue, Sir Munby said that “the courts have had to grapple with the legal and procedural issues generated by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial”.

The President noted that there is an increasing presentation of secret recordings in the family courts in particular. He attributes this increase to two factors:

1. The availability and decreasing cost of recording equipment and        mobile phone software;

2. The “widespread distrust in … the competence or integrity of the family justice system”.

On a similar note, incidents of professional malpractice have only been brought to light thanks to the use of covert recordings.

In Re F (A Minor) [2016] EWHC 2149 (Fam), a mother, as part of care proceedings, had been assessed by a consultant clinical psychologist. The mother made covert recordings of her sessions, and said that she had been misquoted and adversely misrepresented by the clinical psychologist.

The judge found that while much of the evidence was reliable, there was a “manipulation of material which is wholly unacceptable” and as such, the court could not rely on the recommendations made.

Sir Munby, in Re B, stated that a crucial consideration is the category of recording. As each category may lead to a variety of different issues.

The questions that arise for all categories include, the lawfulness of the recording, the admissibility of the recording, what is best practice outside of the court room and what other evidential and practical issues may rise (such as determining the authenticity of recordings).

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