If you want to record what your child has to say about their other parent or their living arrangements then why can’t you? After all, your child has a right to be heard and their views may be the best evidence you have that your child wants the child arrangement order you want.
Angelique Holm explains the law and guidance on recording children and trying to use the recordings in a child arrangement order, prohibited steps order, specific issue order or relocation application. She also addresses what happens when you try to do so.
For children and family law advice call Angelique Holm on 0203 488 8620 or email
info@hopeholm.co.uk or visit our website Hopeholm Family Law.
Can I covertly record my child?
You can covertly record your child but depending on:
- The purpose of the recording
- The use made of the recording
You could get yourself into trouble.
Why do you want to record your child?
It’s OK to take a video of your child on your phone to capture a precious childhood moment. You don’t need the other parent’s agreement or approval. They can’t control what you do while you are parenting your child although sometimes it feels that they are imposing many rules and regulations on what you can and can’t do.
Can I share a recording of my child?
If you want to share a video clip in your family WhatsApp chat then that’s completely normal – even if your ex-partner hates your parents and does not like the thought of her ex-in-laws seeing a video of your child.
It gets more problematic if you want to post the clip of your child on social media and your ex-partner doesn’t want their child appearing on Facebook – even though the clip is innocent. Your former partner could apply to the court for a prohibited steps order to stop you from posting recordings or pictures and to take down any existing ones.
It can be tough to work out the rules to protect your child and achieve fairness. For example, you may think your ex-partner is being unreasonable as she is always thinking she is a bit of a social media influencer and putting your child on the internet whilst with her. A specific issue order can spell out the rules for both parents to follow.
The other tricky area is when you want to use a recording made of your child to support your court application or to oppose your ex-partner’s application.
Do I need court permission to record my child to use the recording as evidence in court?
If you ask the court for permission to record your children and to use the recording as evidence then the court won’t permit you to interview your child and use the recording as evidence. The court is likely to think you don’t have your child’s best interests at heart rather than think your request is the action of a desperate parent keen to do anything to ensure a child’s views are made known to the court.
The judge will say that the child will be interviewed by CAFCASS and the child’s wishes and feelings will form part of the CAFCASS report (called a Section 7 report) You may think that is hopeless for you because your ex-wife is coaching the child to say he or she doesn’t want contact. That may be part of their alienating behaviour and their plan to stop or reduce contact.
Can I take a covert recording of my child for use in court proceedings without court permission?
You may be tempted to get a recording of your child and then present it to the court because you know that your ex-partner is a master manipulator and that the court won’t give permission for you to make a recording of your child.
Your argument is likely to be that your child didn’t even know that they were being recorded by you as your questions were very subtle. It was more of a chat than an interview and, without the formality of a CAFCASS interview, your child opened up and said what living arrangements would suit them.
What is the effect of recording a child without the court or an ex-partner’s agreement?
If you record your child and then ask the judge for permission to use it in evidence your actions will:
- Make the judge question your parenting because they may think if you did not follow the rules then what else have you done or are you capable of
- Make your ex-partner angry and less likely to reach an agreement on residence or contact
The judge may conclude that not only have you created trust issues with the court and with your ex-partner but also with your child who won’t know whether you are covertly recording them in the future. If the child knew about the recording and was told to keep it a secret then this brings into question your ability to meet your child’s emotional needs and to develop and value a trusting parent-and-child relationship.
What is the value of a covert recording of a child?
You may think that a covert recording is of immense value as it is your child saying what has happened or what they want to happen. However, the court is likely to refuse to listen to it or to place weight on it as you could have ‘got to’ your child before you started your recording.
The best thing you can do to try and secure the child arrangement order you want is to present your case from your child’s perspective. That means not making it personal with your ex-partner and instead focusing on why the orders you are seeking are in your child’s best interests.
What is the Family Justice Council’s Guidance on the covert recording of children for use in court proceedings?
If you ask to use a covert recording of your child in court proceedings the judge will follow the Family Justice Council Guidance to decide whether to allow you to use the recording as part of your evidence.
The judge will consider:
- The welfare of your child
- Whether the recording is likely to be of probative value. That means whether the use of the recording will assist in resolving a disputed issue
- Any authenticity concerns
- Whether allowing the use of the covert recording will affect the court timetable and any hearing date
- Whether you should pay the costs of holding a case management hearing to consider these issues
Legal advice on using covert recordings of children in child arrangement order proceedings
Telling the court that you have recordings of your child and want to use the recording as part of your evidence in a child arrangement order application can backfire on you. That’s why it’s best to speak to a specialist family law solicitor before you take the covert recording. If you have already taken it, talk to a family lawyer about its relevance so they can advise you on the next steps and represent you in the child arrangement order application.
For advice on resolving family law disputes through non-court dispute resolution call Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or visit our website Hopeholm Family Law.