Use of Recordings

Why do people make recordings?

There are various situations where someone might feel the need to make a recording.
In meetings with professionals (e.g. Children’s Services, school staff or Cafcass), parents may feel they need to have an indisputable record of what was said:

  • The parent might be unable to read or write, have a poor memory or difficulty concentrating (e.g. when stressed or due to a disability).
  • It can be difficult to fully participate in a meeting, when trying to handwrite or type notes at the same time.
  • A parent may simply not want to rely on other people’s notes and want an objective record of their own. Even where minutes are taken, there can be a delay in their circulation. Parents can also find it difficult to get corrections made, especially where others at the meeting have a different recollection of what was said.
  • A lack of trust may have developed, with a particular professional or with professionals in general and the parent feels that a recording is necessary to demonstrate that their version of events is accurate. For example, social work records often include notes from conversations with parents, which can be treated by professionals as conclusive because they have been made by someone in authority.

In private family disputes, a parent may also wish to have a record of what happened:

  • A parent may feel it necessary to create a record of what was said and how things went during handovers for contact between one parent and the other.
  • Lack of trust between parents may lead to anxiety over allegations being made against them, particularly if this has happened in the past.
  • A parent may be trying to prove breach of a court order.

What does the law say about recording others?

General Data Protection Regulation (GDPR) and
Data Protection Act 2018 (DPA 2018)
The GDPR does not prohibit individuals from making recordings for personal use. Article 2(2) states:
“This Regulation does not apply to the processing of personal data…(c) by a natural person in the course of a purely personal or household activity.”
This would include recordings for intended for the family court, as it would be a family or personal matter (although the court’s permission will still have to sought to admit the recording into evidence and it can decide to whom it may be disclosed).
The GDPR is incorporated into UK law via the DPA 2018. Article 2 is referred to in s4(2)(a) and s21(3).
Regulation of Investigatory Powers Act 2000 (RIPA)
RIPA only applies to surveillance by public bodies and to their accessing personal electronic communications. It does not prohibit or regulate covert recording by private individuals.
European Convention on Human Rights (ECHR) and
Human Rights Act 1998 (HRA 1998)
Article 8 of the EHCR states that everyone has a right to respect for private and family life, which must not be interfered with by a public body (with certain exceptions). i.e. the duty not to interfere is owed by public bodies only, not individuals.
The Convention was introduced into domestic law by the HRA 1998, the Articles being listed in Schedule 1.

How does the issue of confidentiality impact on ability to make recordings?

Confidentiality issues really only arise if the recordings are distributed or published; it is not of itself a barrier to covert recording.

Recording is not the same as publishing or distributing recordings that have been made.

How do professional bodies approach the use of recordings?

The Police
Since the Police and Criminal Evidence Act 1984 (PACE) came into force, strict new rules have required Police to routinely record all interviews with suspects. Para 1.5A of Code E (PACE) states:
“Recording of interviews shall be carried out openly to instill confidence in its reliability as an impartial and accurate record of the interview.”
Children’s Services
While the law doesn’t prevent individuals making records for their own personal use, where professionals make records of meetings with parents and/or child(ren), they are likely to be processing data for the purposes of the Act and must therefore comply with its provisions.
In 2018, the Transparency Project issued guidance called “Parents Recording Social Workers”, which encourages social workers to engage with and support a transparent approach to working with parents. A number of local authorities have since developed their own policies in line with this approach.
(Child & Family Court Advisory Support Service)
In its Operating Framework document, Cafcass states:
“We should have nothing to fear from covert recording. Our attitude should be, ‘I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did’. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.”
The Family Court
It is a contempt of court to record court hearings, unless the court has given permission.
Under Rule 22.1, Family Procedure Rules 2010, the court can control the nature of the evidence that it requires, as well as the way in which the evidence is to be placed before the court. The court can therefore choose to exclude evidence, including recordings, but should give clear reasons, so that an appeal court could understand why the decision was made and what factors were taken into account.
Some concerns the Court may have about allowing covert recordings into evidence include; inaccuracy, lack of context, failure to provide a copy of the original recording and the potential impact on the child when they find out they have been recorded. The Judge will need to make decisions about the admissibility of covert recordings on a case by case basis.

Can I record my child?

The appropriateness and value of recording children depends very much on the circumstances and nothing in this note should be taken as suggesting that children are recorded making allegations or expressing views except in a controlled environment and under the supervision of appropriately qualified professionals.