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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2017] EWCA Civ 1579 (18 October 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1579.html Cite as: [2018] 1 FLR 1205, [2018] 1 FCR 226, [2017] WLR(D) 706, [2017] EWCA Civ 1579 |
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CIVIL
DIVISION)
ON APPEAL FROM LEICESTER FAMILY COURT
His Honour Judge BELLAMY
Strand, London, WC2A 2LL |
||
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B
e f o r e :
and
LADY JUSTICE KING
____________________
In the matter of ![]() ![]() ![]() |
____________________
by
NYAS Legal) for the
child's
NYAS guardian
The father appeared in person assisted by
a McKenzie friend
The mother was neither present nor represented
Hearing date : 10 November 2016
____________________
Crown Copyright ©
Sir James Munby, President of the Family Division :
"The father in support of his case that this was a case of deliberate alienationby
the mother, sought to rely on various covert recordings made
by
him over the years. The judge took the opportunity of inviting a number of interested
bodies
to make written submissions in relation to the use of covert recordings of interviews and telephone conversations with practitioners. Such an invitation was neither necessary nor relevant to the decision to
be
made
by
the judge, and on his own account was intended "to stimulate discussion on the issue out of which perhaps some general guidance might emerge". Mr Graham [he appeared
before
my Lady as the father's McKenzie friend] points out that some 20 pages of what is a lengthy judgment was concerned with a consideration in the abstract of the use of covert recordings. Mr Graham submits that such an approach was unhelpful and inevitably gave the father the impression that the judge was not focused on his particular case."
These covert recordings were, as the judge explained, of conversations the father had had with a social worker, a Cafcass officer and a solicitor.
"7 It is unfortunate that judge's interest in the wider issues thrown up has nowbeen
interpreted as judicial
bias
![]()
by
the father and I can see how the father may have reached the conclusion that the judge had
become
over-concerned with the wider issues in relation to the use of covert recording. Happily, however, the judge dealt in a discrete passage within the judgment with the issue that relates solely to this case in relation to those covert recordings. In an exemplary passage, the judge concluded that the father should
be
permitted to rely on the recordings, notwithstanding the mother's objections and NYAS's expressed neutrality. The judge rightly concluded that such recordings were admissible and that the issue is as to relevance; the judge accepted that those recordings are relevant in the context of the father's case, not least in relation to his assertion that the mother has deliberately alienated [the
child]
from him. At paragraph 119, the judge set out in five numbered paragraphs why he concluded that little weight should
be
attached to the recordings.
8 In my judgement the judge's analysis cannotbe
criticised and it is a matter for the trial judge, having seen and heard the parties give evidence and having viewed the video recordings in question, to determine the weight to
be
attached to any particular piece of evidence and to draw his own conclusions as to the correct interpretation of that evidence. I note that whilst expressing his disapprobation of such covert recordings, the judge nevertheless referred to certain cases where they have had a significant effect on the outcome of the case.
9 The recordings werebut
part of a much larger evidential picture. And were not as Mr Graham seeks to persuade the court effectively determinative of the case."
"In my judgment, there is no prospect of the father succeeding in appealing the orders madeby
the judge. Far from
being
guilty of
bias,
the judge maintained his independence at every turn, for example: he rightly granted the father a Parental Responsibility Order, notwithstanding the objections of all the other parties, and he also intervened in a proactive and robust manner in order successfully to reintroduce direct contact
between
[the
child]
and her uncle. The judge's approach to the covert recordings was in accordance with the law as it now stands. The judge's conclusion, that
both
parents must
bear
responsibility for the present state of affairs was reached after careful consideration of all the evidence and having seen and heard the parties give oral evidence. Accordingly permission to appeal is refused."
"20 I turn to the second part of the application, which is in relation to the publication of the judgment. Mr Graham says that, in the father's view, the judgment is not a realistic reflection of the case and therefore it should notbe
published. In the light of my conclusion that there is no real prospect of succeeding in an appeal against the judge's order, and accordingly the judge's finding must stand, such a submission has no merit and must fall away.
21 Mr Graham further submits that the detail of the case, if published, would not only serve to drive a further wedgebetween
the parents,
but
would also have a significant impact upon [the
child]
in the event that she read the judgment which would
be
freely available on the internet.
22 In itself such a submission would not lead me to granting permission; it seems to me, however, that there is a further important issue to consider which leads me to conclude that pursuant to CPR 52.36(b),
there is some compelling reason why the court should hear the full appeal in relation to the question of the publication of the judgment.
23 His Honour JudgeBellamy,
a circuit judge, has purported to provide guidance as to how covert recordings should
be
approached in this very difficult area: he gave the guidance in circumstances where he had neither the approval nor endorsement of those guidelines
by
the President of the Family Division, nor had they
been
considered
by
the Law Commission, or rules committee. There is, in my judgment, an important issue as to whether in those circumstances it is appropriate for the judge's views as to the proper approach to covert recording to
be
disseminated on the internet, available to the professions and all those advising parents, including McKenzie friends.
24 Accordingly, in respect of the ground of appeal in relation to the publication, I propose to list that matter for further oral permission to appeal, with appeal to follow if allowed, tobe
listed for 2 hours, to
be
listed
before
the President and myself. In those circumstances I also leave open the argument
by
the father as to the impact on [the
child]
of permitting the judgment to
be
published."
"nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that wouldbe
the envy of yesterday's spies."
The other, I fear, has to do with the widespread distrust in too many quarters of the competence or even the integrity of the family justice system and of the professionals involved in it. Here, of course, it is the existence of the mindset rather than its foundation in reality which is the driving force. But
it does give rise to important questions of public policy: see, for example, Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, where a father filmed social workers removing his
baby.
"invited Cafcass, The Transparency Project and two other interestedbodies,
the National Association of Guardians ad Litem and Reporting Officers and the Association of Lawyers for
Children,
to make written submissions on this issue. I am grateful to them for their willingness to respond. Their responses are set out in an Appendix to this judgment."
The Appendix occupies some 22 pages of text. The judge continued:
"I hope in this way to stimulate discussion on this issue out of which, perhaps, some general guidance may emerge."
"Transparency is the watchword of the Family Court."
No-one could quarrel with that, but
he went on:
"The covert recording of conversations with the intention of using that material as evidence is the antithesis of transparency … as a general principle, the Family Court should deprecate and strongly discourage such making of covert recordings."
With respect, that conclusion does not necessarily follow from the premise, either as a matter of logic or as a matter of law. Moreover, the "general principle" he enunciates is far too sweeping and, expressed in these un-nuanced terms, potentially misleading. Surely, a more accurate and nuanced formulation would require consideration of such matters as who is doing the recording, and why, and who is being
recorded.
"whether in those circumstances it is appropriate for the judge's views as to the proper approach to covert recording tobe
disseminated on the internet, available to the professions and all those advising parents, including McKenzie friends."
i) One would be
to permit the judgment to
be
published as it stands, hoping that our judgments today will act as a sufficient 'health-warning'. This, in my judgment, would not
be
satisfactory. The judgment would
be
in the public domain, albeit with a 'health-warning'
but
without fully reasoned judgments from us correcting, as opposed to merely identifying, errors or possible errors in the judge's analysis. This would
be
particularly unhelpful, indeed pregnant with future uncertainties and difficulties, as my Lady has suggested, in a field where so many of the issues seem to arise in the Family Court, often in cases involving litigants in person and McKenzie friends for whom the judgment might
be
confusing, indeed, positively unhelpful.
ii) Another would be
for us to elaborate our judgments, so as to spell out, more specifically and in much more detail, not merely what is or may
be
wrong with the judgment
but,
where there has indeed
been
error, setting out what the law and practice are, or in the latter case ought to
be.
This, in my judgment, would not
be
appropriate: in the first place, the present case is not an appropriate vehicle for us, any more than it was for the judge, to
be
embarking upon such a wide-ranging exercise, and, secondly, we are ill-equipped to do so in a case where the representation is as it is and where, despite the written input from those whose submissions the judge annexed to his judgment, we do not have the width of expert input which would
be
available to the Family Justice Council and the Family Procedure Rule Committee.
iii) The other course would be
to allow the judgment to
be
published
but
without some of the more questionable paragraphs. This, which might at first
blush
seem
both
feasible and appropriate, is, in my judgment neither. Short of omitting the entirety of paragraphs 103-120, which would have the undesirable consequence of omitting paragraph 119, the problematic aspects of the judgment, as the discussion in paragraphs 20-27 above demonstrates, appear in enough places to make it very difficult to see how, without a wholly inappropriate amount of editing, the judgment could
be
suitably redacted.
Lady Justice King :
Note 1 A search of Note 2 At the very end of what, if I may say so, was a very impressive judgment, Her Honour Judge Lazarus made this sobering observation: “In this case, the parents’ allegations were frankly treated dismissively from the outset. BAILII
using the words “covert” and “recording” identifies a number of relevant cases in addition to those I have referred to in this judgment. There are seven relevant judgments of Circuit Judges in the Family Court. Two are cases of covert surveillance: Re R and E (
Children)
[
2017]
EWFC
B22;
Re E and N (No 2) [
2017]
EWFC
B27.
The other five are cases of covert recording: Lancashire County Council v P (injured
child;
welfare stage) [2015] EWFC
B72;
Re X [2015] EWFC
B168;
Re A,
B,
C, D & E (Final Hearing) [2015] EWFC
B186;
Re A (False allegations of sexual abuse) [2016] EWFC
B27;
Re C (
Children)
[2016] EWFC
B55.
A similar search identifies four relevant judgments of High Court judges sitting in the Family Court. One is of covert surveillance: A County Council v AB & Ors [2015] EWFC 82. The others are of covert recording: Cumbria County Council v M & Ors [2016] EWFC 27; Re A &
B
(
Children:
Restrictions on Parental Responsibility: Extremism & Radicalisation in Private Law) [2016] EWFC 40 (use of tracking device); Re FW (A Minor: Leave to Remove from Jurisdiction) [
2017]
EWFC 53. There are a further three relevant judgments since January 2014 of High Court judges sitting in the Family Division: Gloucestershire County Council v M [2014] EWHC 1572 (Fam); H v Dent & Ors [2015] EWHC 2090 (Fam); Joy v Joy-Morancho [2015] EWHC 2507 (Fam). [Back]
But
for this court’s willingness to permit the consideration and transcription of the recordings, despite the extreme lateness that they were provided, in combination with the requirement that the foster carer attend to give evidence … , it would have
been impossible to gain a just and proper understanding of this case.” [Back]