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Parents warned that videotaping children for evidence may be damaging—for the kids and for the case

By April 11, 2017No Comments

By Gianna Huesch

The march of technology means family lawyers need to keep up with an ever changing environment of laws and behaviours. One fairly recent development is the massive rise of mobile phone and tablet use in Western societies, which has seen a simultaneous rise in the number of parents trying to use the technology to gather evidence to use in divorce and custody cases.

Lawyers in the UK, for example, now reveal they are seeing far more cases than ever before of parents trying to use smartphones and tablets to record their conversations with their children—with cases coming before lawyers as often as on a weekly basis. In Australia, the use of technology to attempt to gather evidence has likely been equally pervasive. (We discussed the admissibility of such evidence last year.)

The ease of use of the technology, coupled with the fact that children are often already being filmed for the parent’s personal or social media purposes, means the lines are easily crossed, and the activity of recording children for court purposes has become increasingly popular.

But now there are renewed calls for parents to be made aware of the potentially harmful effects of recording the children for use in court cases.  The motivation behind it and manner of recording evidence is usually quite different to the creation of happy snaps for Facebook, and so may be quite traumatic to the child:

“Parents often thrust a phone in front of a child and ask them a ‘barrage’ of questions which can leave them upset.”

The recording can take place overtly (where the child can see the device and knows they are being recorded) or covertly (such as the recent British case where a man sewed electronic listening devices into his child’s school blazer). Either way, such interrogation of children can lead to “exceptionally distressed” children, and ultimately, parents losing their family law case as the tactic often backfires in courtrooms.

Lawyers say that courtrooms generally frown on parents attempting to create their own evidence through recording “proof” of a child’s feelings about another parent or wishes regarding custody arrangements.  Parents who interrogate their children this way may find their parental capacity called into question and be regarded by a judge as lacking insight as parents. Ultimately, judges tend to see it as adding conflict. It’s especially harmful in instances where the judge is satisfied that a parent has coerced the children into making false allegations.

Not only that, but the parent’s behaviour might also invite accusations of child abuse and the consequent involvement of child protection authorities. And there’s always the risk of also breaking local data protection laws, particularly if there are other kids in the frame without consent.

The legality of how the evidence was obtained is important, as giving a judge evidence that you have obtained illegally doesn’t help your credibility in the eyes of the court, and may even lead to criminal penalties.

Even if evidence is legally obtained, it might still not be admissible in a family law case unless the judge finds it has probative value. The courts consider a range of factors in considering the desirability of admitting the evidence, looking at factors like the probative value of the evidence and the gravity of any impropriety or contravention of orders that has been recorded. So, while interrogating children about their other parent is likely to be traumatic and harmful, obtaining video of abusive or other disruptive behaviour, for example at handovers, may be helpful if it contributes to an objective view of important evidence.

In Australia, cases have gone both ways. In one case a father’s recording of himself and the family consultant was judged inadmissible. In another, a father was able to provide recordings of the mother demonstrating instances of child abuse—in this case, the benefits of the evidence outweighed the way it was obtained.

Each case of recording needs to take into account unique circumstances, but the advice is to generally be wary of making recordings. When helping our clients in relation to this issue, we carefully consider the admissibility of the evidence, whether it was obtained on legal grounds, and whether it actually has value to your case.

Please call family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to discuss the best way forward for you.

Read our blog on making secret recordings: http://alliancelegal.com.au/can-you-record-private-conversations-with-your-ex-partner/

Read the UK story: http://www.telegraph.co.uk/news/2017/04/08/parents-film-children-win-custody-battles-bitter-divorce-cases/

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please call Alliance Family Law.

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