This question was raised at a recent training event I was delivering on Law for Social Workers. It resulted in an interesting discussion, which I considered would benefit other social care professionals.
What is the problem?
These days anyone with a smartphone can covertly record. The recording itself may not be a problem if it is used for personal use. In this way, it can be positive as the recordings could assist by reminding the parent/service user of what was discussed and, therefore, possibly improve relationships between the parents/service user and professionals, resulting in better cooperation, communication and engagement.
Recordings may be undertaken for a variety of reasons. Parents or service users may wish to record because:
- it is easier than making notes;
- they may not want to rely on or wait for the formal minutes;
- they may wish to listen to the recording again in their own time to gain a better understanding;
- they may not trust notes made by others;
- they may find it hard to challenge in the meeting and so can rely on their notes to do so after the meeting.
In some cases, the recordings have supported parents. In the case of Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 covert recordings were made by the mother of the foster carer of a series of verbal abuse to the mother who was placed with her baby with the foster carer. Until the recordings were heard, the mother was not believed, and the recordings were used to support the mother and dismissing the credibility of the foster carer’s allegations against the parent.
Private meeting
The issue for professionals is if these recordings:
- are used to catch them out unfairly
- are used for evidence later on or out of context,
- are edited, cut or tampered with
- are distributed via social media.
- lead to the identity of the child or the service user.
- result in the disclosure of confidential information
All the above will be of concern for professionals and as a result could result in a fear if they believe they may be recorded and could distract attention from the needs of the child or service user.
The parent or service user can do the recording directly or indirectly. In the case of M v F (Covert Recording of Children) [2016] EWFC 29 the father and his partner had sewn recording devices in the child’s clothes without the child’s knowledge so that they could record the child’s conversations with professionals. The case concerned a dispute about whether the child should live with her father or mother. The father then wanted to submit more than 100 pages of transcribed conversations. The judge admitted it as evidence in the manner the recordings were made, which was directly relevant to an assessment of the parenting the father and his partner offered. The fact that the father and his partner did this without the child’s knowledge was an indicator that they could not meet the child’s emotional needs and that the father could not trust professionals.
What does the law say:
In the case Re J (A Child) [2013] EWHC 2694 (Fam) the child’s father repeatedly published details of the care proceedings relating to his children, it included a covert video of the child being removed from his parents’ care under an Emergency Protection Order on Facebook and elsewhere on the internet.
The local authority sought an injunction to include the prohibition of publication of professionals’ names involved with the child and for it to last until the child’s 18th birthday. There was already a similar injunction in place in respect of the child’s elder sibling. The President of the Family Division agreed that an injunction was required now and in the future in relation to the child’s name. However, the President was equally mindful of the need for the public to understand the workings of the system, and so he did not prohibit the video images. This was because the video image showed the baby at one day old, and the child was unlikely to be identified from the video.
Data Protection Act 1998
This Act does not prevent parents or service users from covertly recording personal or family meetings; however, this can be a breach of the General Data Protection Regulations (GDPR). All recordings made after 25 May 2018 are subject to the provisions of the GDPR
- This was highlighted by Peter Jackson J (as he then was) in the case of M v F (Covert Recordings of children) [2016] EWFC 29, when he commented that he felt the exemption within the legislation applying to normal domestic use may not apply to recordings processed for evidence gathering purposes, particularly if then shared with a professional or body
- Possible civil action under the Data Protection Act as it is an offence to knowingly or recklessly obtain personal data without the consent of the controlled or procure or obtain disclosure without consent, and
- The impact of the recordings could be considered harassment, particularly if there are ongoing criminal proceedings or police involvement.
Social Media
If a parent/service user or other individual posts recordings of a meeting on a social media platform, this could be considered a breach of GDPR. Article 5 (1) provides that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”.
The Family Justice Council released draft guidance in December 2022, identified that the distribution of a covert recording on the internet (through social media or other means) can have harmful consequences to the child, either because it could lead to them being identified as a child involved with social services or simply by virtue of the emotional impact of details of their private lives being made public without their consent or control. Where the publication of a recording or the threat of publication is or may be harmful, the court may be asked to consider the making of an injunction to prevent publication or to attempt removal from the public domain.
Human Rights
We all have a right to privacy and respect for private family life. If there is a recording of the meeting, it is the private of the family subject to the discussion, which will attract these human rights and not the private life of the professionals. As already stated, it is not the recording that is the issue; but what is the intended purpose of the recording, and whether it will lead to breaches of data protection or human rights claims.
Professionals have a duty of confidentiality with respect to the private information they collate. Professionals also have a duty to carry out their work, balancing that with an individual’s respect for family life and privacy. However, where necessary and for the purposes of safeguarding, social care professionals do have a right to interfere with the right for respect for family life, privacy and right of expression where it is necessary and proportionate to do so, particularly when it infringes on the welfare of a child or service user.
If a recording is distributed or published by another family member or other third
party, it may be a breach of family members’ confidentiality and privacy and may
amount to harassment.
Due to the confusion regarding the law and guidance in this area, The Transparency Project produced guidance note for parents and professionals called Parents Recording Social Workers.
Can a parent or service user rely on the recording in court proceedings?
The Family Justice Council guidance on covert recordings states that they are treated as hearsay evidence. The court must be provided with the details necessary to properly determine the factors relevant to whether covert recordings should be admitted into evidence and the weight to be given to them as hearsay evidence.
The case of Re J (A Child) [2013] EWHC 2694 (Fam) illustrates that parents or service users do have the right to tell their side of the story as long as the child’s identity is not disclosed. As a result, if asked whether the recording can be made, professionals will discourage parents and service users, particularly if the child is subject to Children Act proceedings which are confidential.
Therefore, even if a covert recording is made, the judge can grant permission for the recording to be relied on in court if it is relevant and reliable. Should the judge decide to exclude it, then the judge will have to give clear reasons addressing the balance between the need for a fair trial and the evidential value of the recording.
What should I do if a request to record is made?
As we can see, the law does not require the parent or service user to seek permission to record the meeting or discussion. So if you have been informed that the parent or service user wishes to record the meeting or discussion, you should consider the following:
- ask the reason it is being recorded and what is the purpose of the recording;
- enquire whether the parent or service user could bring an advocate or supporter who can take notes on their behalf as an alternative;
- seek confirmation that it will not be distributed and is being made for personal use only;
- explain the importance of privacy and confidentiality;
- inform the other professionals also present that the meeting is being recorded;
- request a copy of the recording and, if necessary, produce a transcript;
- if the parent or service user has legal representation, ask them to discuss their request to record first with their legal advisor.
What if it is a covert recording?
CAFCASS provided guidance in their document, Operating Framework, suggesting that if you were doing your job, you had nothing to fear. This is in the spirit of being transparent and open with the parents and service users.
Once you become aware of a covert recording, you can seek clarification from the parent or service user about the purpose of the recording.
If you are in court proceedings, then you should either inform the court directly or, if the local authority legal team is involved, then immediately inform the legal team, who in turn will inform the court.
The court can grant an injunction to prevent the distribution of the recording or removal of the information.
If the recording is of the court hearing itself, then doing so without the court’s permission is contempt of court under S.9 of the Contempt of Court Act 1981. Unauthorised filming, recording or live streaming proceedings from a court room, including remote court hearings, even when those hearings are being live streamed to the press and public, can result in contempt of court proceedings, criminal sanction and very large fines. In 2021, the BBC was fined £28,000 for recording and then airing as background a six-second recording of an ongoing court hearing.
NALGRO (professional association for Children’s Guardians, Family Court Advisers and Independent Social Workers) issued Guidance on Recording Meetings between a Practitioner and Client (2016) notes that audio recording will not record important non verbal communications. Therefore, if it is known or if there is a suspicion that the meeting may be recorded, detail the visuals, e.g.: “you are shaking your head; is that because you do not agree?”
In line with CAFCASS’s guidance, do not be fearful; once you are aware, take advice.
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