In the matter of B (A Child)

Family-court judgments should not give broad guidance on covert recording unless the issue has been properly analysed and the guidance is necessary to decide the case. Transparency alone does not justify a general rule that covert recordings should be deprecated or strongly discouraged. The court must consider who made the recording, why it was made and who was recorded. The power under Family Procedure Rules 22.1 to control or exclude evidence does not, without further analysis, establish a prior permission requirement for lawful, relevant and otherwise admissible evidence. A Circuit Judge should not issue general guidance, although a Designated Family Judge may issue properly limited local guidance. The appeal was allowed so that a judgment containing seriously questionable guidance was not published.

Private law proceedings concerned a child and allegations that the mother had deliberately alienated her from the father. The father relied on covert recordings of conversations with professionals. His Honour Judge Bellamy permitted reliance on the recordings but published a judgment containing wider guidance on covert recording. Lady Justice King refused permission to appeal the substantive orders, but directed a further hearing on publication in [2016] EWCA Civ 1088. The central issues were whether the Circuit Judge had been entitled to formulate and disseminate general guidance and whether the judgment should remain publicly available.

Appeal allowed in part. The court set aside the relevant part of the order of 23 June 2016 and directed that the judgment should not be made publicly available, whether on Bailii or elsewhere. The substantive orders were unaffected.

1. The court agreed that the judge’s treatment of lawfulness, admissibility, relevance and the recordings in the present case was broadly consistent with the law. Admissibility and relevance did not determine the weight to be given to the recordings, which remained a matter for the trial judge.
2. The statement that transparency required the Family Court generally to deprecate and strongly discourage covert recording was too sweeping and potentially misleading. The proper approach required consideration of who made the recording, why it was made and who was recorded.
3. Family Procedure Rules 22.1 empowered the court to control evidence and exclude evidence that would otherwise be admissible. That power was not the same as requiring permission before lawful, relevant and otherwise admissible evidence could be adduced. The point required fuller analysis and was not finally determined.
4. General guidance should be issued through appropriate national mechanisms, including Presidential guidance, the Family Justice Council, the Family Procedure Rule Committee or an appropriately constituted expert process. It was not part of the functions of a Circuit Judge sitting in the Family Court to deliver a general guidance judgment. A Designated Family Judge could issue compatible local guidance dealing with local practice and procedure.
5. Publication with a warning, detailed appellate correction or extensive redaction would each be unsatisfactory. The least inappropriate course was therefore to prevent publication. The court invited the Family Justice Council to consider the wider subject of covert recording.

Lady Justice King agreed with the judgment of Sir James Munby.

1. Court of Appeal (Civil Division): On 18 October 2017, the court allowed the appeal concerning publication, set aside the relevant part of the order and directed that the judgment should not be publicly available.
2. Court of Appeal (Civil Division): On 13 September 2016, Lady Justice King refused permission to appeal the substantive orders but directed a further hearing on the publication issue in [2016] EWCA Civ 1088.
3. Leicester Family Court: His Honour Judge Bellamy made substantive orders on 2 June 2016 and ordered publication of his judgment on 23 June 2016.