Evidence that may have been obtained illegally is eligible for inclusion in a care application, a Judge has ruled.
His Honour Judge Moradifar had been asked to consider a former couple whose children had been made the subject of care proceedings. Social workers believed the couple were still in a relationship despite their claims to the contrary.
They hired a private investigator who, in April this year, observed the father in the mother’s house during the course of his surveillance, several months after they said they had broken up. The authority applied to submit this evidence during the proceedings, to the dismay of the parents who insisted that the surveillance had been in breach of Article 8 of the European Convention on Human Rights, which governs ‘respect for private and family life’.
In the Family Court, His Honour Judge Moradifar explained:
“The local authority accepted that the evidence did not show that the mother was present …. The local authority relied on this evidence as part of a wider canvas to prove an allegation that the parents have remained in a relationship despite their maintained assertion that they have separated.”
The parents, by contrast, pointed to the father’s “difficult personal circumstances at that time”, as a result of which she had agreed he could stay in her home. But she had not been present at the time, as she staying with her own mother at the time.
The parents argued that hiring the investigator had been misguided and disproportionate, and that doing so had breached not only their human rights but also the Regulatory of Investigatory Powers Act. The latter legislation governs the use of surveillance by public bodies.
The evidence gathered by the investigator could be included in the Council’s case, Judge Moradifar concluded, as the nature of the couple’s relationship was central to this.
“…on a cursory analysis of the facts that remained in issue and required the court’s determination, it is clear that the surveillance evidence was relevant to this allegation. Indeed no party has sought to submit that it was not.”
But, he said, he did not have the jurisdiction to rule on whether or not the evidence had been legally admissible. “Illegally obtained” evidence was not automatically excluded from such cases Judge Moradifar continued, but responsibility for any illegality would remain with the body who produced it.
“If the court gives permission for illegally obtained evidence to be adduced, it will not absolve a public authority or body from its responsibility for any lack of compliance with the relevant statutory provisions and any sanctions that may follow.”
The parents’ allegations would have to be pursued via a separate court application he explained.
Read the ruling here.