Is it ever a good idea to film children in a custody dispute?

children and divorce

OK, before I begin I suppose I had better explain the terminology I have used in the above title. As anyone familiar with family law in this country will know, the term ‘custody’ was superseded nearly thirty years ago, replaced first by the term ‘residence’ and then by the term ‘child arrangements’. However, I have used the old term, as referring to either a ‘residence’ dispute or a ‘child arrangements’ dispute may not mean much to many people, whilst everyone still understands the term ‘custody’, even if some deprecate its use. Oh, and by ‘custody’ I include disputes over contact between the child and the ‘non-custodial’ parent.

Right, having got that out of the way, to the subject of this post.

On Sunday a story appeared in a certain national newspaper under the headline:

‘Parents film children to win custody battles in bitter divorce cases’

It was one of those stories that gave the impression of having been ‘manufactured’ to fill a few column inches, not being based upon any particular case or incident, but rather upon the opinions of contributing lawyers. Nevertheless, it makes a point that I am sure is valid in these days of mobile phones and iPads: that parents involved in custody disputes film or record their children in an effort to obtain evidence to strengthen their case. I have to say that I never came across this myself, but then I stopped practising some eight years ago, and mobile devices have proliferated in that time.

The story suggested that the primary purpose of filming or recording the child is to obtain proof of the child’s wishes. The ascertainable wishes of the child is of course one of the items on the ‘welfare checklist’, that list of matters to which the court must have regard when considering whether to make an order relating to a child. The wishes of the child can be of critical importance in many cases, especially where the child is older, or where the wishes are particularly strongly held.

In most cases the wishes of the child are ascertained by a court welfare officer speaking to the child, preferably alone, and reporting back to the court. However, some parents are not satisfied that the welfare officer correctly establishes the child’s true wishes and feelings, perhaps through incompetence, or even bias. We saw something like this last year, when a father attached recording devices to his daughter before she met with a social worker to ascertain her wishes. In that case Mr Justice Peter Jackson criticised the father’s actions, saying that it was “almost always likely to be wrong” for someone to record their child’s conversations in this way.

So can filming or recording children ever be the right thing to do?

I understand that some parents involved in disputes over arrangements for their children are utterly adamant that the court, or its officials, has got it wrong, and can be desperate to find a way to get the truth known. However, it is actually extremely rare that the court has got things that wrong, and any parent who feels that way should give the matter some very serious thought before deciding to film or record their child. After all, the court is likely to take a dim view of the mere act of filming or recording the child, so it could seriously damage the parent’s case, irrespective of what the child said in the recording.

The story differentiates between recordings that are made openly, and those that are made covertly. I would sub-divide that first category into two: ‘controlled’ recordings in which the parent works to a ‘script’ of their own design, and ‘free’ recordings, where the participants are all aware that they are being recorded, but there is no script.

I will now deal with the three categories, starting with covert recordings. These are I think easy to deal with: they are almost certainly going to be wrong, representing a breach of trust between the parent and the child, which could have serious consequences for their future relationship. If a child is old enough, or mature enough, for their wishes and feelings to be taken into account by the court, then they are old enough, or mature enough, to be treated with respect and made aware that what they say or do is being recorded.

Moving on to open but controlled, or scripted, recordings, it is difficult to imagine that these are ever likely to be considered useful by the court, for obvious reasons. Even if it does not happen, there will be a suspicion that the child has been coached by the parent, or at least ‘encouraged’ to say certain things, making anything the child did say worthless.

Open, unscripted recordings have I suppose the best chance of being of some evidential value. However, the big problem here for the parent is of course that the child is always likely to say what he or she thinks that particular parent wants to hear (scripted recordings obviously share the same problem), even if the recording was not made with the intention of acquiring evidence. This is precisely the reason why court welfare officers try to speak to children out of earshot of either parent.

In short, I think the advice to any parent considering recording their child is simple: it’s almost certainly going to be a bad idea.

Photo by Lukc Roberts via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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7 comments

Kerry Clark - April 12, 2017 at 3:04am

I believe that you are completely wrong in saying that the court “rarely” gets it that wrong. There are some areas are well known for corruption and biased judges that get it wrong every day and do so on purpose.

John Smith - April 12, 2017 at 4:10pm

This is generally an excellent blog. It would be a shame if you lost our respect by throw away comments such as courts ‘rarely’ gets it wrong!

Evidence: Putting Children First Campaign debated in the House of Commons September 2016 where 19 children were murdered by fathers and another child died in January 2017. Whilst of course this is a woman’s aid campagin the facts speak for themselves, that the court got it tragically wrong.

If the courts can get it so wrong in these extreme cases [okay this instance its been fathers] you cannot claim they rarely get it wrong. How do you know. There is no follow up to find out how these children fare in later years. What about the more subtle cases where instead of physical murder, there is soul and psychological “murder” where children are mistreated, abused, psycholgically abused, alienated. Perhaps this more subtle abuse is less gender specific.

this is 2017, we have the internet, facebook, big brother house type reality tv, the life of 5 year olds, house of tiny tearaways etc etc etc… PARENTS perhaps its time to start a petition to force all parents to enter a big brother house type fascility for a few weeks prior to being allowed to go to court. Psychopaths, sociapaths narcisists, autistic spectrum, or just selfish parents cannot maintian their manipulative masks under such scrutiny over a long period of time and psychologists, Judges etc would soon see the family dynamics and provide better solutions for the whole soon to be divorced family…

John Smith - April 12, 2017 at 4:14pm

PS. my apologies I did not intend to suggest people on the autistic spectrum are maniuplative per se. just that it may be harder for them to “see” a childs needs.

Paul - April 12, 2017 at 4:18pm

The court gets it wrong 90% of the time.
They get it wrong deliberatly in line with their ‘domestic violence’ agenda.
To remove the possability of making mistakes and been held accountable like in the horrendous case of baby P. Some brightspark has decided to follow an agenda called ‘victim orreinted policing’
Which is basicly.
Aligation is made.
Aligation is believed.
Speration is enforced.
No possibility of a case of Abuse been missed.
Which means people making false aligations are empowered and justified at all times during the proccess.
No claims are scrutinised. At all.
Which leaves kids wide open to a another equally damaging kind of abuse called Patental Alienation.
A one sided policing policy like this is like candy for Sociopaths and people with psyciopathy. Do not underestimate how many people have these issues.
60% of the prison population have these issues they are everywhere.
An the police are taking allegations at face value.

‘YOUR PRESUMTION OF INNOCENCE HAS BEEN TAKEN’ you no longer are pressumed innocent.

JamesB - April 12, 2017 at 5:04pm

For what it is worth, I stopped getting arrested and spending hours in a police cell when I either recorded the times my ex was about or took a witness. Stopped her assaulting me then getting me arrested.

Mobile phone / cameras recording technology improvements helped me. Used to set it recording on roof of car pointed at front door for handovers for example and keep a diary. I started this as no one takes a non resident fathers word for any value and explaining to the police I was the victim while being arrested was not working but taking valuable time from me and upset so did the recording instead. I also wish I had recorded the Cafcass and court etc as I (like most non resident fathers) am not as bad as I am told I am and there is no evidence for the name calling in 99% of cases.

JamesB - April 13, 2017 at 1:53am

No evidence 99% of the time as 99% of family law allegations are pure fiction and made up lies to try to further the case of the person making them up.

JamesB - April 12, 2017 at 5:05pm

That the establishment let the 1% shape the 99% shows how bad they are.

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