This question was raised at a recent training event I was delivering on Law for Social Workers. It resulted in an interesting discussion, which I considered would benefit other social care professionals.
What is the problem?
These days anyone with a smartphone can covertly record. The recording itself may not be the problem if it is used for personal use. In this way, it can be positive as the recordings could assist by reminding the parent/service user of what was discussed and therefore have the consequence of possibly improving relationships between the parents/service user and professionals resulting in better co-operation, communication and engagement.
Recordings may be undertaken for a variety of reasons. Parents or service users may wish to record because it is easier than making notes, they may not want to rely on or wait for the formal minutes. They may wish to listen to it again in their own time to gain a better understanding.
In some cases, the recordings have clearly established the parent’s case. In the case of Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 covert recordings were made of the foster carer of a series of verbal abuse to the mother who was placed with her baby with the foster carer. Until the recordings were heard the mother was not believed and the recordings were used to support the findings against the foster carer
Private meeting
The issue for professionals is if these recordings:
- are used to catch them out unfairly
- are used for evidence later on or out of context,
- are edited, cut or tampered with
- are distributed via social media.
- lead to the identity of the child or the service user.
- result in disclosure of confidential information
All the above will be of concern for professionals and as a result could result in a fear if they believe they may be recorded and could distract attention from the needs of the child or service user.
The recording can be done directly or indirectly by the parent or service user. In one case the father and his partner had sewn recording devices in the child’s clothes without the child’s knowledge so that they could record the child’s conversations with professionals. (M v F (Covert Recording of Children) [2016] EWFC 29) the case concerned a dispute about whether the child should live with her father or mother. The father then wanted to submit more than 100 pages of transcribed conversations. The judge did admit it as evidence in the manner the recordings were made being directly relevant to an assessment of the parenting the father and his partner offered. The fact that father and his partner did this without the child’s knowledge was an indicator that they could meet the child’s emotional needs and that the father could not trust professionals.
What does the law say:
In the case Re J (A Child) [2013] EWHC 2694 (Fam) the child’s father repeatedly published details of the care proceedings relating to his children, it included a covert video of the child being removed from his parents’ care under an Emergency Protection Order on Facebook and elsewhere on the internet.
The local authority sought an injunction to include the prohibition of publication of professionals’ names involved with the child and for it to last until the child’s 18th birthday. There was already a similar injunction in place in respect of the child’s elder sibling. The President of the Family Division agreed that an injunction was required now and in the future in relation to the child’s name. However, the president was equally mindful of the need for the public to understand the workings of the system and so he did not prohibit the video images. This was because the video image showed the baby at one day old and the child was unlikely to identified from the video.
Data protection Act 1998
This Acts does not prevent parents or service users to covertly record meetings for personal or family use.
Human Rights
We all have a right to privacy, and respect for private family live. If there is a recording of the meeting, it is the private of the family subject to the discussion which will attract these human rights and not the private life of the professionals. As already stated it is not the recording that is the issue but what is the intended purpose of the recording and whether they will lead to breaches of Data Protection or human rights claims.
Professionals have a duty of confidentiality in respect of the private information they collate. Professionals also have a duty to carry out their work having regard to respect of individuals’ family life. However, if necessary social care professionals do have a right to interfere with the right for respect for family life, privacy and right of expression where it is necessary and proportionate to do so particularly when it infringes on the welfare of a child or service user.
As a result of the confusion in terms of the law and guidance, The Transparency Project has produced guidance for parents and professionals.
Can a parent or service user rely on the recording in court proceedings?
The case of Re J (A Child) [2013] EWHC 2694 (Fam) illustrates that parents or service users do have the right to tell their side of the story as long as the child’s identity is not disclosed. As a result, if asked whether the recording can be made, professionals will discourage parents and service users, particularly if the child is subject to Children Act proceedings which are confidential.
Therefore even if a covert recording is made, the Judge can grant permission for the recording to be relied on in court if the recording is relevant and reliable. If the Judge decides to exclude it then the Judge will have to give clear reasons addressing the balance between a need for a fair trial with evidential value of the recording.
What should I do if a request to record is made?
As we can see the law does not require the parent or service user to seek permission to record the meeting or discussion. So if you have been informed that the parent or service user wishes to record the meeting or discussion you should consider the following:
- ask the reason it is being recorded and what is the purpose of the recording
- enquire whether as an alternative the parent or service user could bring an advocate or supporter who can take notes on their behalf.
- seek confirmation that it will not be distributed and is being made for personal use only.
- explain the importance of privacy and confidentiality.
- inform the other professionals also present that the meeting is being recorded.
- request a copy of the recording and if necessary produce a transcript.
- If the parent or service user has legal representation ask them to discuss their request to record first with their legal advisor.
What if it is a covert recording?
CAFCASS provides guidance in their document headed Operating Framework and suggest that if you were doing your job you have nothing to fear and this is in the spirit of being transparent and open with the parents and service users.
Once you become aware of a covert recording you can seek clarification from the parent or service user as to the purpose of the recording.
If you are in court proceedings then you should either inform the court directly or if the local authority legal team is involved then immediately inform the legal team who in turn will inform the court.
The court can grant an injunction to prevent distribution of the recording or removal of the information.
If the recording is of the court hearing itself then this is contempt of court if it is done without the court’s permission.
In line with the guidance offered by CAFCASS do not be fearful, and once you are aware take advice.
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