Mental Capacity Case

Re: Children (Private Law: Covert Recordings: Adjournment of Final Hearing).

Recorder Briggs
No neutral case citation on the BAILLI report


The family court had to decide whether transcripts of covert recordings made by one party (the mother) of conversations between her and the father (also a party to the proceedings), could be relied on at a final hearing.

These transcripts had been filed and served by the mother some months before the hearing with no objection being raised by the father. They had also been placed into the trial bundle, again with no objection by the father. However in the father's position statement filed for the final hearing, he asserted that permission ought to have been sought by the mother to rely on the transcripts. He askedĀ  the Court not to admit the transcripts into evidence.

The argument in support of the application that the evidence should not be admitted, was that while there was no rule of court that requires a litigant to seek permission to adduce such evidence 'best practice' was that such applications be made.

During the hearing of the application, it became clear that the transcripts were taken from longer recordings, and that the mother had another hundred or so covert recordings that had not been filed or served. It was agreed that all recordings should be served on the father, and an adjournment was granted to allow the father to consider these. No decision was therefore made by the Court on the issues raised by the application.

The Judge with obvious displeasure noted that there was no court available to hear the adjourned trial for six months, going on to say:

The production of audio and video material in family proceedings is now a frequent occurrence and there are obvious issues surrounding editing, quality of any transcription, production of original footage and wider context which must be case managed in advance of a trial. Even if that is not a matter of law (and I have yet to hear full argument on that issue), it is quite obvious from a practical perspective.


In a case where such evidence is relied upon, practitioners would do well to raise this at the case management stage so that any issues that arise (such as whether there is an obligation to disclose further covert recordings which are not relied upon, or whether permission is required to rely on such evidence) can be thrashed out well in advance of a final hearing.

Equally, a party faced with such evidence should raise any objection at the time that it is served.