Data protection and the family law conspiracy

Divorce|June 8th 2016

We recently reported on the contentious case of a father who had placed listening devices on his daughter’s clothing to record conversations with social workers.

The child in question, in “the later stages of primary schooling”, lived with her father but her mother wanted her to come and live with her instead. The local authority became involved and appointed a guardian and social worker to the case. Meetings were held with the girl herself, to try and ascertain her “wishes and feelings”., to use the legal term – who she wanted to live with and what she thought about the dispute between the parents.

When the father and his new partner found out, they became, to quote Mr Justice Peter Jackson, “determined to know what the child was saying at these meetings”. Initially the father thought the girl might be telling the social workers things he did not known about but later became convinced that they weren’t acting on things she was telling them. It is not difficult to imagine the suspicion born of a bitter residence dispute.

Assisted by his partner, they bought tiny microphones – the ‘bugs’ we’ve all seen in spy dramas over the years – and attached one to the daughter’s school blazer and another to her raincoat. They then downloaded and transcribed hundreds of pages of these conversations, selecting only those they thought appropriate.

When the residence dispute eventually came to court, Mr Justice Peter Jackson decided the mother was the most suitable parent because the father and his new partner could not meet her emotional needs. Their decision to engage in covert recording had damaged relationships and shown the father’s “inability to trust professionals”.

Our correspondent John Bolch touched on the case in a feature the following day. He said the case demonstrated a certain internet-fuelled distrust and paranoia regarding family law professionals and their alleged biases and secret agendas, a narrative out of all proportion to the occasionally flawed but well-intended reality.

But as is the way with these things, denials by the perceived powers-that-be only make the conspiracy theorists more convinced of ill intent, and the comments section on the blog duly exploded.

But somewhat lost amongst all this headline-generating noise was the original judgement, which contained some interesting elements.

We discover, for example, that the father seems to have been experienced in covert recording.

“The father accepted that at an earlier stage he had carried out surveillance on the mother, including by using a private detective and by monitoring the in-car tracker device. He gave “”no comment”” answers to questions about accessing her private emails or iPad location service, but he admitted to accessing and making a screenshot of her private Facebook page when it was open on [the daughter’s] iPad. He had also taken hundreds of photographs in and of her home during the financial proceedings in order to substantiate his claim that she had a live-in boyfriend.”

It all shows a stomach-churning and entirely self-centred lack of respect for the privacy rights of his ex-wife and his child. The court was extremely concerned about how best to control the impact of all this on his daughter and also on her friends when they all discovered that the father and his partner had been snooping on them for such a length of time – almost a year. What would that do to her sense of trust and her relationship with him?

And there was another nugget in the judgement that also interested me. What about the legal status of the recordings themselves? This is barely addressed by the published judgement yet it is an issue that lawyers have to deal with frequently. The daughter’s counsel at one point submitted that the recordings had not breached the Data Protection Act 1998, because they fell under an exemption provided by section 36 of the Act, which covers data gathered solely for “the purposes of that individual’s personal, family or household affairs (including recreational purposes).” These are, it says, “exempt from the data protection principles”.

Yet Mr Justice Peter Jackson was not persuaded, declaring:

“Uneducated, I would assume that the exemption is intended to protect normal domestic use, which this is not.”

So a can of worms that might have been opened earlier in the case had Counsel taken a different view was left alone, and that’s a pity.

Charitably, let’s assume this father was simply carried away by the emotion of the case. I’m relieved to say his is not the sort of conduct we routinely come across. I can think of only one case in my entire career which matched it and drove the wife to a near breakdown.

But I can think of plenty of cases where a client casually mentioned they fixed a tracker to the family car to prove adultery, or recorded an argument with the other party. In some cases there have been cameras placed in the house, or a bug on the house phone. Computers are routinely accessed because the password has never been changed. It’s all very easy and cheap to do these days, as Mr Justice Peter Jackson remarked in his judgement on this case.

But in reality the law doesn’t require it. Judges detest it. Solicitors really and truly don’t want to be told that their client is up to all sorts of dirty tricks and then have to work out how to get them as far out of trouble as they can. All sorts of rules come into place, for example, with purloined documents, including disclosure to the other side and even lodging them with the court. It all adds to the heat and emotion and most of all the cost of each case.

You might not see it that way as a litigant. You might think you need to do it to get peace of mind or because you genuinely think it’s going to help your case. But the truth is that it won’t. The plain fact is that going to those lengths always rebounds, as it did in this case, with the relationship between that little girl and her father most likely irreparably damaged and permanently changed.

Read the ruling here.

Author: Stowe Family Law

Comments(3)

  1. Andy says:

    So what would the legal system do if the Mother did the same..Trouble in this case is the system and all agencies that have an active role in this case,the question is,are they professional to Hibernian bias report or make mistakes that have horrendous outcomes towards the Father in his distrust of the system that is to be relayed on.
    How we keep on hearing the councils and the agencies have failed parents with incorrect reports,assumptions and poor management but never criticised….
    So can you blame a father that could of uncovered wrong doings by all parties involved and would this wrong doing be have got action from court..do you remember old people’s homes where under cover surveillance cameras were used to uncover beatings and handling of patients etc so in essence it cuts both ways.
    But yet again the law supports the mother and supports what ever she does above the law or below it..

  2. Rob says:

    There are two points about this case.

    1. Why are the Family courts so reluctant to such evidence in.

    UK criminal courts are alone in refusing to introduce the product of wiretaps into evidence. Whereas the Police are now used to having to have their interviews recorded and introduced in evidence, the previously flimsy public policy reasons advanced by the authorities to object to introducing such evidence – loss of trust in the police etcetera; Justice Jackson still feels the need to use the same policy arguments.

    Neither John Bolch nor Marilynn do a good job of explaining why such civil disputes should be treated differently – i.e. why should a police officer be recorded but not a social worker.

    2. Just because a child is being interviewed, why is it okay that there should not be any warning of the interview, often surreptitiously done in school hours unannounced. Court hearings are arranged many months in advance. Even client interviews are arranged in advance. Yet such important interviews are arranged without warning, without notice. I write having done such interviews and having been the subject of such interviews, why is important that a lack of notice / involvement is a precondition? Why should not the same reasons apply to other persons in a case. Would Marilynn be willing to speak on an active case while, say watching an episode of the Good Wife?

  3. GPs hit with fine after revealing address of patient | says:

    […] for processing and guarding sensitive information, and had therefore been in breach of the Data Protection1 Act. In addition, staff had received little training in data […]

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