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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: [2017] WLR(D) 706, [2018] 1 FLR 1205, [2018] 1 FCR 226, [2017] EWCA Civ 1579 |
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 2017] EWCA Civ 1579 | ||
| B4/2016/2569 |
CIVIL DIVISION)
ON APPEAL FROM LEICESTER FAMILY COURT
His Honour Judge BELLAMY
Strand, London, WC2A 2LL |
||
| 2017 |
B e f o r e :
and
LADY JUSTICE KING
____________________
| In the matter of B (A Child) |
____________________
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 :
be unremarkable, except to the parties. However, it raises a point of no little public importance (though it has no impact on the substantive orders made by the judge), in relation to which my Lady, King LJ, gave directions when the matter came before her, on 13 September 2016, on the father's application for permission to appeal: Re B (A Child) [2016] EWCA Civ 1088.
by that careful and always meticulous judge, His Honour Judge Bellamy. He was sitting as a Circuit Judge in the Family Court at Leicester (of which at that time he was the Designated Family Judge; he is now the Designated Family Judge at Derby) hearing private law proceedings between the two parents of a girl born in May 2005. The father was unrepresented but had the assistance of a McKenzie friend, Mr Stuart Graham. The mother was also unrepresented but likewise had the assistance of a McKenzie friend. The child was represented by counsel, Ms Victoria Clifford, instructed by her NYAS guardian.
before us arose because, as my Lady explained (Re B, para 6):
"The father in support of his case that this was a case of deliberate alienation
These covert recordings were, as the judge explained, of conversations the father had had with a social worker, a Cafcass officer and a solicitor.
By the other, dated 23 June 2016, the judge ordered that his judgment be published on the normal terms. His reasons for doing so were set out in a second judgment, running to a further 31 paragraphs, handed down on 24 June 2016.
both orders. In relation to the first order, my Lady refused permission to appeal, for reasons set out in her judgment which there is no need to rehearse. In the course of this part of her judgment she had to address the father's complaint that the judge's treatment of the covert recording point demonstrated bias on his part. Rejecting this complaint as unarguable, my Lady said this (Re B, paras 7-9):
"7 It is unfortunate that judge's interest in the wider issues thrown up has now
8 In my judgement the judge's analysis cannot
9 The recordings were
"In my judgment, there is no prospect of the father succeeding in appealing the orders made
"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 not
21 Mr Graham further submits that the detail of the case, if published, would not only serve to drive a further wedge
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(
23 His Honour Judge
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, to
before us on 10 November 2016. The appellant appeared in person, assisted by his McKenzie friend, Mr Graham. The child was represented, as before Judge Bellamy, by Ms Clifford. The mother, as when the matter was before my Lady on 13 September 2016, was neither present nor represented.
Before turning to consider Judge Bellamy's judgment on the covert recording point, some preliminary observations are in order.
by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial. Since the second half of the nineteenth century the courts have had to grapple, and keep up, with the legal and procedural issues generated by the invention of technologies for the audio or visual recording of events. On one level there is nothing very new about this. Thus, the covert filming or video-recording of personal injury or benefits claimants suspected of fraud has been an established and acceptable practice for many years. But in the family courts the issue has become much more pressing in recent years.[1]
child's play. As Peter Jackson J sagely commented in M v F [2016] EWFC 29, [2016] 4 WLR 92, para 1,
"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 would
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.
be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual. In Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 a mother made covert recordings of the abusive and racially insensitive foster carer who she was living with along with her baby; until the recordings were played she had been disbelieved.[2] In Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149 (Fam), [2017] 1 FLR 1304, the lamentable shortcomings of an expert, a consultant clinical psychologist, were, in significant measure, laid bare only because the mother had covertly recorded her assessment sessions with him.
between open recording and covert recording. In the nature of things, it is the latter which is more problematic. Without seeking to establish a complete taxonomy, there are at a least three categories of covert recording, each of which may raise a variety of different issues (see the careful comment of Peter Jackson J in M v F [2016] EWFC 29, [2016] 4 WLR 92, para 7): covert recording of children (for an example see M v F [2016] EWFC 29, [2016] 4 WLR 92), covert recording of other family members (for an example see Re C [2015] EWCA Civ 1096), and covert recording of professionals (see, in addition to the cases referred to above, the Transparency Project's Parents recording social workers – A guidance note for parents and professionals published in December 2015, version 2, January 2016).
been done; (ii) best practice outside the court room as it were; (iii) the admissibility of the recording in evidence; and (iv) a variety of other evidential and practice issues (for example, as to how the recording is to be put in evidence, problems in relation to sound and picture quality, and, in particular, disputes as to authenticity – who are the people who can be heard or seen on the recording, has the recording been edited or 'cut and spliced'? – which may necessitate calling expert evidence).
be important to identify who is doing the recording and why. Covert surveillance and recording by the police and other agencies, including the Security Service, which in current conditions not infrequently impinges upon the family courts, is one thing. Covert surveillance and recording by others may – I put the point no higher, it being a matter for another day – raise rather different issues.
been systematically considered either at first instance or in this court.
Bellamy's main judgment runs, as I have said, to 166 paragraphs. The part that deals with the covert recording point runs to 18 paragraphs (paras 103-120). Having as it were set the scene (paras 103-106), the remaining sections of this part of the judgment are arranged under the following headings: "lawfulness" (paras 107-109), "admissibility" (paras 110-111), "relevance" (paras 112-113), "applying for permission to rely on covert recordings" (paras 114-117), "the present case" (paras 118-119) and "wider discussion" (para 120). In the course of this, Judge Bellamy referred to four judgments: that of Her Honour Judge Lazarus in Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66, that of Roberts J in H v Dent & Ors [2015] EWHC 2090 (Fam), that of Peter Jackson J in M v F [2016] EWFC 29, [2016] 4 WLR 92, and that of Underhill J in Vaughan v London Borough of Lewisham [2013] UKEAT 0534_12_0102. He also referred to FPR 22.1.
"invited Cafcass, The Transparency Project and two other interested
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."
B, paras 7-9, 19) there is much in what the judge said under the headings "lawfulness" (paras 107-109), "admissibility" (paras 110-111), "relevance" (paras 112-113), and "the present case" (paras 118-119), with which I would not quibble. Broadly speaking, the judge's approach to the covert recordings was in accordance with the law as it now stands, and his reasoning in the ultimately decisive paragraphs dealing with "the present case" (paras 118-119) was, I agree with my Lady, unimpeachable.
"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.
be admissible." But that is not the same as saying that the permission of the court is required before lawful, relevant and otherwise admissible evidence can be adduced. This is a matter that requires more detailed analysis, including of the FPR, before one can safely conclude that what the judge said is correct.
B, para 23). The judge has gone on (paras 116-117) to set out guidance as to how such an application should proceed, his guidance being, in effect his exegesis in this context of the 'overriding objective' in FPR 1. He sets out his views as to how an application for permission, as he would have, should be made and then sets out "in the light of experience, and in particular experience in this present case" what he "venture[s] to suggest" are the issues that the written statement in support of the application should address. These are not matters that the judge needed to address in order to decide the case before him fairly and justly. Moreover, he embarked on the whole exercise in a case where, because both the father and the mother appeared in person, he did not have – and this, I emphasise, is no reflection at all upon Ms Clifford, or, for that matter, Mr Graham, who seems to have been well informed on the point – the benefit of sustained, professional and adversarial argument. Most fundamentally, however, this was not, with great respect to the judge, an exercise appropriately undertaken by a Circuit Judge.
by the Lord Chief Justice, of issuing a Practice Direction. The President can issue non-statutory Practice Guidance. The Family Justice Council can issue guidance, which typically bears the President's endorsement (a recent example is Guidance on "Financial Needs" on Divorce, published in June 2016). The President can commission a piece of work from some appropriate expert which is then issued with his imprimatur (for example, The Family Courts: Media Access and Reporting – Guidance issued by the President of the Family Division, Sir Nicholas Wall, the Judicial College and the Society of Editors, issued in July 2011). Very typically, all these various forms of guidance are the result of processes which, even if they do not involve wider consultation, will have involved the input of the Family Justice Council and/or the Family Procedure Rule Committee.
by the President or by another judge of the Family Division, reflecting the need for more general guidance on a topic which has arisen in a particular case and in relation to which the judge has had the benefit of detailed submissions from counsel. Very frequently, a 'guidance judgment' given by a judge of the Family Division will, with the President's agreement, record the fact that it has, in relation to such guidance, been read and approved by the President: see Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FLR 944, paras 4, 6, 98. It is not, however, part of the functions of a Circuit Judge sitting in the Family Court to deliver such a judgment.
be understood as preventing a Designated Family Judge from issuing, in appropriate circumstances, and always assuming that it is compatible with the law and general practice and with any nationally applicable guidance, local guidance intended for purely local use within the area of his responsibility as Designated Family Judge and dealing with local practice and procedure in the courts for which he has responsibility. That is not, of course, what Judge Bellamy was doing here.
B, paras 21, 24), I turn to address the point identified by my Lady (Re B, para 23):
"whether in those circumstances it is appropriate for the judge's views as to the proper approach to covert recording to
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.
be published. For my part I would therefore propose to give permission to appeal on this point and to allow the appeal to the extent of setting aside the relevant part of the judge's order of 23 June 2016 and, in its place, directing that the judgment is not to be made publicly available, whether on Bailii or elsewhere.
basis of appeal put forward by the father, for he will have achieved his objective, albeit for quite different reasons. That said, I am sceptical as to whether he would have succeeded in his challenge.
Bellamy's endeavours have usefully demonstrated, in my judgment, is the need for consideration to be given to what is a topic of growing significance for family courts in relation to which there is, at present, surprisingly little authority and no adequate guidance. In that sense his intervention has been both timely and useful. I propose therefore, as a first step, to invite the Family Justice Council, which as a multi-disciplinary body is particularly suited to undertake the task, to consider the whole question of covert recording from a multi-disciplinary viewpoint. It will no doubt wish to consider the various documents annexed to Judge Bellamy's judgment as well as all the other materials I have referred to. There are also interesting discussions to be found on the blogosphere – for example, in the Suesspiciousminds and Pink Tape blogs; no doubt there are others – which merit careful consideration.
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]