04/08/2021
With technology becoming increasingly more sophisticated there seems to be a rise of individuals who resort to spying tactics. The .independent reported recently that 1 in 5 people going through divorce “uses surveillance equipment to spy on spouse”.
In practice too, I have noticed the issue becoming progressively more common - most likely due to the tools being readily accessible. I have known individuals installing cameras in the family home as they believed that their partner was having an affair and wanted to catch them in the 'act'. In addition, I have experienced spouses who tracked their partner’s car and phone to see whether they are being dishonest about their whereabouts. Individuals with advanced computer skills and hacking abilities, have monitored their partners use of mobile phones (including messages and website searches) and used 'Alexa' to listen into their spouses’ conversations remotely.
'Spying' tactics have also been used to confirm or disprove the following: -
1. Aggressive behaviour or difficulties at handovers;
2. whether a former spouse has commenced employment; and
3. whether a former spouse is cohabiting.
In terms of the family court, covert recordings are generally not admissible. You will require the Judge’s permission to rely on such evidence and the issue may be heavily contested by the other party. In previous cases I have been granted permission to include covert recordings however, only in cases where they have been relevant to the issues and considered necessary. For example, in children disputes when the evidence demonstrates a child welfare issue. In financial remedy proceedings, there is no obligation on the court to admit any or all evidence concerning the parties' resources. In deciding whether to admit information, the court must consider the importance of the evidence, the conduct of the parties and any other relevant factors.
The court prefers unedited evidence for obvious reasons. Therefore, the family court is more likely to grant permission if the entire incident/conversation has been recorded or the full chain of messages are included rather than an edited selection.
In Re B (A child), Former President of the Family Division James Munby said:
“Whatever the nature of the recording, a number of issues are likely to arise. Again, without any pretence to completeness it is obvious that questions may arise as to
(i) the lawfulness of what has been done;
(ii) best practice outside the court room as it were;
(iii) the admissibility of the recording in evidence; and
(iv) a variety of other evidential and practice issue (for example, as to how the recording is to be put in evidence, problems in relation to sound and picture quality, and, in particular, disputes as to authenticity – who are the people who can be heard or seen on the recording, has the recording been edited or “cut and spliced”? – which may necessitate calling expert evidence).’”
Therefore, if relying on recordings be prepared to…
1. Confirm the date of the recording
2. Explain the way in which the recording was made
3. Explain why the recording was made
4. Explain the context of the recording and disclose the entire recording
5. Explain why the court needs to see or hear the recording
The issue of covert recordings is a difficult balancing exercise. The evidence can either help or hinder a case. Therefore, I would strongly recommend anyone representing themselves to seek legal advice on the issue.
