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2.4 Electronic Recording of Meetings and Conversations

This chapter has been added to the manual in October 2016. This chapter deals with recording of meetings/conversations by individual service-users, in their capacity as private individuals. Note that the employees of the local authority, acting in their professional capacity, are subject to different legislative requirements, e.g. under the Data Protection Act 1998.

This is a developing area, and legal advice must be sought as necessary.


Contents

  1. Introduction
  2. Consent
  3. Use of Recorded Material
  4. Good Practice
  5. Further Information


1. Introduction

Advances in technology make the recording of meetings and other conversations (e.g. via smartphones) much more easily available to individual service-users. This may be simply because they wish to have a verbatim record of the conversation to refer back to, or because they have difficulties in following or recalling conversations. They may, however, seek to use the recording for other purposes such as admission into evidence in family court proceedings, or even for wider broadcast.

This may arise in the context of private law or public law proceedings, and may involve recording of conversations between parents, between parents and social workers, foster carers, etc, or recording of conversations between parents and children. One parent may be trying to use it, for example, to justify their assertions regarding contact with the other parent.

The recording may take place overtly or covertly.


2. Consent

There are no specific legal restrictions on the recording of face-to-face conversations, whether this is overt or covert. Thus, whilst good practice would suggest that advance consent should be sought for any planned recording, a blanket ban on recording is unlikely to be lawful.

This is not a clear-cut area, and legal advice must be sought as appropriate. Practitioners should be mindful that covert recording may be taking place, and should endeavour to ensure that they do not make statements during ‘private’ conversations which they would not be prepared to hear produced as evidence in court.

Cafcass, in its Operating Framework, states:

‘We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did.” This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge’.

The fact that the social worker has not given their consent to the conversation being recorded does not, of itself, render the recording unlawful or inadmissible.

If the scale or style of recording is excessive, oppressive or disproportionate, then this may cross a threshold. For example, a parent recording their questioning of the child in a manner which is oppressive may in fact be evidence of possible emotional abuse of the child by that parent. Persistent recording of a social worker in such a way as to amount to intimidation may constitute harassment, and it may be possible for the social worker to seek legal redress such as a non-molestation order.


3. Use of Recorded Material

Whilst the recording itself may well be legitimate, there may be restrictions on its use.

If a party seeks to admit such material into court proceedings, then it is at the discretion of the court whether to allow this or not. Such evidence will only be admitted if it is relevant to the issues in the case and not, for example, in furtherance of a personal grievance by a parent against a social worker.

The Data Protection Act 1998 does not prohibit data processing ‘by an individual only for the purposes of that individual’s personal, family or household affairs’ (Section 36). The scope of this in the context of recording is not clear. However, Jackson J in M v F (Covert Recording of Children) (2016) EWFC 29 expressed the view that the exemption is intended to protect normal domestic use, and would not cover the covert recording of individuals, and particularly children, for the purpose of evidence-gathering in family proceedings.

Wider distribution, for example, making such material available via the internet, may well be in contravention of the Data Protection Act 1998. It may also be the case that the recording may contain information (including possible ‘sensitive personal information’) relating to third parties, and the distribution of such information so as to enable those third parties to be identified is likely to be in breach of data protection provisions. If the issues in question are the subject of ongoing court proceedings, then there is also a possible contempt of court.


4. Good Practice

This summary outlines the actions to be taken by a Council Officer in all meetings involving service users to ensure that those present are fully aware of their rights and the limitations placed on recordings at meetings.

  1. Before starting any meeting remind all those present that it has been minuted:
    1. The meeting will be discussing confidential sensitive personal data;
    2. That it is the expectation of the meeting that any such information that is disclosed will not be discussed with anyone outside the meeting and close family and, or advisors of those present;
    3. Than none of the information discussed will be disclosed to the press or on social media.
  2. Ask if anyone present intends to record the meeting:
    1. If the answer is NO reassure the meeting that a written record of the meeting will be prepared by the Council for distribution after the meeting;
    2. If the answer is YES:
      1. If the subject of discussion is Ward of Court advise that the Court will need to be consulted on any recordings;
      2. If there are no other concerns about involvement of the Courts proceed with the meeting but, where possible, minimise the use of the names of individuals.

It is important that each request is considered on its own merits. If the decision-maker has any doubts as to the legal implications of the recording being made due to the subject being under the court of protection or there are concerns about the capacity of the individuals concerned, then legal advice should be sought.


5. Further Information

Please see Parents recording social workers - A guidance note for parents and professionals (The Transparency Project, 2015).

End