Further, there are other products on the market which are designed for a different purpose which can lead to, or tempt, one party to listen in. For example there is a brand of watch, undoubtedly designed to protect children, vulnerable adults and others, that acts as a tracking device linked to a parent, guardian or carer’s smartphone. It also has an SOS button the wearer can press if they find themselves in any difficulty to alert the parent etc. of the fact. However, there is also a function whereby the parent etc. can, unbeknown to the wearer of the watch, listen to the surrounding environment of the wearer. Again this may be a sensible protective measure some people wish to utilise but one can see how such a function may be ‘useful’ to a party wishing to record or listen in where they would not otherwise be able to.
This type of evidence is admissible in proceedings, although a judge has the power to exclude it under FPR r.22.1. In the context of proceedings involving children, often the evidence will be allowed as the recordings may be relevant to issues relating to a child’s welfare and/or be helpful to a Judge when considering the wider context of a matter.
Last year I highlighted the case of M v F (covert recording of children)  EWFC 29 in which a father and his partner made extensive covert recordings of the child involved, going to such lengths as sewing recording devices into the child’s clothing. The transcripts produced for the court ran to in excess of 100 pages. Jackson J (as he then was) stated at the outset of his judgment in that case that ‘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…This should hardly need saying’, concluding that ‘experience suggests that such activities normally say more about the recorder that the recorded’.
There is surprisingly little authority or judicial guidance on this issue. Indeed, Sir James Munby referred to the courts having to ‘grapple’ with the legal and procedural issues such recordings involve. For example, faced with a transcript or audio of a recording, a judge will have to satisfy themselves that the evidence is relevant to the issues, has not been edited and that the voices are of those of the persons they are claimed to be. It is therefore a very difficult topic to provide comprehensive guidance about.
Jackson J’s warning goes some way in respect of children proceedings; in that case the judge made a Child Arrangements Order that the child would live with the mother and the father was ordered to meet the costs the mother had incurred dealing with the covert recordings. Clear guidance or a Practice Direction from the President setting out such risks for a party seeking to rely on such evidence may go some way to prevent a potential flood of litigants producing hours of potentially irrelevant recordings, or ones that in fact have the opposite effect to that desired.”