OK, before I begin I suppose I had better explain the terminology I have used in the above title. As anyone familiar with family law in this country will know, the term ‘custody’ was superseded nearly thirty years ago, replaced first by the term ‘residence’ and then by the term ‘child arrangements’. However, I have used the old term, as referring to either a ‘residence’ dispute or a ‘child arrangements’ dispute may not mean much to many people, whilst everyone still understands the term ‘custody’, even if some deprecate its use. Oh, and by ‘custody’ I include disputes over contact between the child and the ‘non-custodial’ parent.
Right, having got that out of the way, to the subject of this post.
On Sunday a story appeared in a certain national newspaper under the headline:
‘Parents film children to win custody battles in bitter divorce cases’
It was one of those stories that gave the impression of having been ‘manufactured’ to fill a few column inches, not being based upon any particular case or incident, but rather upon the opinions of contributing lawyers. Nevertheless, it makes a point that I am sure is valid in these days of mobile phones and iPads: that parents involved in custody disputes film or record their children in an effort to obtain evidence to strengthen their case. I have to say that I never came across this myself, but then I stopped practising some eight years ago, and mobile devices have proliferated in that time.
The story suggested that the primary purpose of filming or recording the child is to obtain proof of the child’s wishes. The ascertainable wishes of the child is of course one of the items on the ‘welfare checklist’, that list of matters to which the court must have regard when considering whether to make an order relating to a child. The wishes of the child can be of critical importance in many cases, especially where the child is older, or where the wishes are particularly strongly held.
In most cases the wishes of the child are ascertained by a court welfare officer speaking to the child, preferably alone, and reporting back to the court. However, some parents are not satisfied that the welfare officer correctly establishes the child’s true wishes and feelings, perhaps through incompetence, or even bias. We saw something like this last year, when a father attached recording devices to his daughter before she met with a social worker to ascertain her wishes. In that case Mr Justice Peter Jackson criticised the father’s actions, saying that it was “almost always likely to be wrong” for someone to record their child’s conversations in this way.
So can filming or recording children ever be the right thing to do?
I understand that some parents involved in disputes over arrangements for their children are utterly adamant that the court, or its officials, has got it wrong, and can be desperate to find a way to get the truth known. However, it is actually extremely rare that the court has got things that wrong, and any parent who feels that way should give the matter some very serious thought before deciding to film or record their child. After all, the court is likely to take a dim view of the mere act of filming or recording the child, so it could seriously damage the parent’s case, irrespective of what the child said in the recording.
The story differentiates between recordings that are made openly, and those that are made covertly. I would sub-divide that first category into two: ‘controlled’ recordings in which the parent works to a ‘script’ of their own design, and ‘free’ recordings, where the participants are all aware that they are being recorded, but there is no script.
I will now deal with the three categories, starting with covert recordings. These are I think easy to deal with: they are almost certainly going to be wrong, representing a breach of trust between the parent and the child, which could have serious consequences for their future relationship. If a child is old enough, or mature enough, for their wishes and feelings to be taken into account by the court, then they are old enough, or mature enough, to be treated with respect and made aware that what they say or do is being recorded.
Moving on to open but controlled, or scripted, recordings, it is difficult to imagine that these are ever likely to be considered useful by the court, for obvious reasons. Even if it does not happen, there will be a suspicion that the child has been coached by the parent, or at least ‘encouraged’ to say certain things, making anything the child did say worthless.
Open, unscripted recordings have I suppose the best chance of being of some evidential value. However, the big problem here for the parent is of course that the child is always likely to say what he or she thinks that particular parent wants to hear (scripted recordings obviously share the same problem), even if the recording was not made with the intention of acquiring evidence. This is precisely the reason why court welfare officers try to speak to children out of earshot of either parent.
In short, I think the advice to any parent considering recording their child is simple: it’s almost certainly going to be a bad idea.
Photo by Lukc Roberts via Flickr