Exercising Caution During Divorce: What would you do?

At Hylton-Potts, it’s important to us that you see us as your go-to source for news and advice within the legal profession, and over the last month, we’ve seen a couple of cases relating to divorce which have left us concerned.

Every day we are faced with families who are being torn apart by divorce, and whether it’s mutually felt that the split is needed and the pair treat one another with civility, or whether it is a daily battle of hostility, it’s vital that we are there to diffuse the situation, and provide calm, unbiased advice. We separate ourselves from the emotion as your representative, and when it comes to gathering evidence to support your case, we are here to give you all the help and advice you need about what is lawful to do and say.

However, two cases have come to light recently which cast this aside, and in today’s post, we wanted to review these with you, and explain why being honest and fair in divorce is absolutely vital in order to get a satisfactory end for both parties, especially when children are involved.

The case of M v F (Covert Recording of Children) [2016] EWFC 29

In recent years, new forms of evidence are something we are seeing more and more of in divorce courts. For example, if one party accuses the other of cheating, they may refer to Facebook for evidence or other social media.

However, in the case of M v F, one father took the concept of recording evidence to a new level, as the court heard how he and his new partner embarked upon a complex and comprehensive recording strategy. This included sewing ‘bugs’ into his child’s school blazer before school to record her day, and using iPhones or other devices to record meetings with social workers and others who were involved in the divorce case.

The father proceeded to create detailed transcripts of what he believed to be relevant evidence, for submission in support of his case. While Mr Justice Peter Jackson permitted the use of the recordings as evidence, he took the time to clearly highlight the perils of his actions, both for the litigants as well as his child.

In terms of the divorce outcome, it was concluded that the mother was best placed to meet the child’s emotional needs. However, undoubtedly, the father’s covert actions swayed the judge’s decision. In his judgment, he stated that concealing a device on a child (who the father asserted had no idea of the recordings) for the purpose of gathering evidence is ‘almost always likely to be wrong’. He added a further cautionary set of damages that such actions were likely to bring about however, including:

• Causing further damage to the relationship between the adults;
• Creating an issue of trust between the child and her father as/when she becomes aware of what had happened;
• It demonstrates the father’s (in this case) inability to trust professionals;
• It significantly increased the cost of the proceedings for all, wasting court time;
• It risks affecting the family’s standing in the community.

The case of C (A Child) [2015] EWCA Civ 1096

In another case, allegations of abuse were thrown from one side to another, and we must reflect on how a child must feel when watching this unfold. In the case of C (A Child) [2015] EWCA Civ 1096, the father alleged that the mother was violent and abusive, and proceeded to install CCTV cameras in his home. He used this to record the child as well as handovers and conversations between the two parties, but it backfired, as the mother alleged that the father’s use of such recording equipment evidenced his own emotionally abusive behaviour.

The court agreed with the mother, and an order was made providing for the child to live with the mother and spend time with the father. While the father had agreed to stop photographing and recording, what kind of effect must this behaviour have had on the child? They would likely feel as though they could trust neither parent, or could even feel contempt towards them; one has recorded their every move, whilst the other has stopped them seeing their father on a regular basis.

The father appealed the order but, it was heard in court that an altercation took place between the two parties at a handover, which the father recorded. The mother obtained a non-molestation order as a result, but the father produced the recording he had made as ‘evidence’ in his defence.

Just as we saw in the first case, the first thought of the judge was that such covert recording demonstrated a lack of focus on the child’s welfare; the father was too caught up in the divorce to consider the implications for the child’s emotional well-being. The father had failed to keep to the agreement not to record the mother or child, and the Court of Appeal rules that the act of recording itself, either covertly or overtly, was capable of attracting a non-molestation injunction under the right circumstances regardless.

Conclusions

While I’m sure those of you reading this would instantly exclaim that you would never resort to such tactics in order to sway divorce proceedings in your favour, it’s easy to lose sight of what is most important during times of fraught tensions and high emotions. Going through a divorce is never easy, but, especially where there are children concerned, it’s the welfare of the whole family that is the most crucial.

In both cases above, the relationship between father and child may be permanently damaged from the perspective of trust; it is always best to try to remain calm, and run any ideas on evidence past a qualified legal professional first.

If you’re in the process of getting divorced and you’d like to know more about the kinds of evidence you can obtain and how to go about it, the best thing to do is to seek advice from our experts as soon as possible. You can call us on 020 7381 8111, or email us at [email protected].

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