Tag Archives: recording

The court’s power to restrain unreasonable behaviour

An interesting recent case is A Local Authority v TA & Others [2021] EWCOP 3. It discusses the law around recording court hearings and shows the wide power the court has to restrain a litigant’s unreasonable behaviour in the wider court process.

This case concerned an elderly woman, GA, who has dementia and was represented by the Official Solicitor. She was cared for at home by her adult son TA. The court was concerned about the negative impact on the proceedings by the actions and conduct of TA and examined two issues 

  • If TA should be permitted to record the court hearings
  • the extent to which the court had power to restrict his communications with the court office. 

Background 

In March 2019 the local authority responsible for meeting GA’s needs under the Care Act 2014 brought proceedings under the Mental Capacity Act 2005. 

TA wanted to record the hearings, essentially for his ‘own protection and benefit’ as the local authority employees were ‘pathological liars’ and he had suffered bullying and intimidation from ‘many’ judges. He also objected to the costs of a transcript and pointed out the common delays in obtaining one. 

TA’s application was opposed on the basis that the widely recognised default position against recording should be recognised and there was a risk that TA would publish the recordings on the internet, as he had done in the past. 

The Judge advised TA that it was possible to be supported in the court proceedings by a McKenzie friend or the services of ‘Support Through Court’. TA could apply to the court for a transcript and in exceptional circumstances, such as wishing to correct an inaccuracy in the transcript, could listen to the official audio recording. (Practice Direction: (Audio Recording of Proceedings: Access) [2014] 1 WLR 632 (considered and confirmed recently in Dring v Cape Intermediate Holdings Ltd. [2019] UKSC 38) at [25]). The Judge indicated he would not grant permission to record, whereupon TA terminated his link to the remote hearing. 

Recording court proceedings

The Judge noted that the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies.  The 2020 Actintroduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which allows the court to direct a recording of the proceedings and creates a criminal offence for a person to make or attempt to make an unauthorised recording 

However, the guidance ‘Remote Access to the Court of Protection’ issued in March 2020 advised that the terms of the statutory criminal prohibitions were to be included in every standard order thereafter, and had been included in all orders in these proceedings. 

Section 9 of the Contempt of Court Act 1981 in addition makes it a contempt of court to record a hearing without the permission of the Judge. There is a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526) if the applicant had a ‘reasonable need’. The Judge found TA had no such need, having a very good, even ‘extraordinary’ grasp of the procedures, documents and issues engaged. 

These proceedings were also subject to ‘Transparency Order’ which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings which relates to these proceedings is controlled by s.12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls withinthe exceptions contained in Practice Direction 4A, paragraphs 33 to 37.  

The court endorsed the definition of ‘publication’ set out by Munby J (as he then was) in re B [2004] EWCH 411 para 82(iii) as anything the law of defamation would treat as a publication, thus covering most forms of dissemination either oral or written. 

Order restricting communication with the court office

TA had been engaged in litigation concerning GA for approximately two years and the nature of his correspondence to the local authority was ‘abusive and inflammatory’ to such an extent that the local authority deemed TA a ‘vexatious complainant’ in March 2019 in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. The decision was reviewed but ultimately extended until 12 September 2021 as TA refused to accept limits to his behaviour. 

By the latter part of 2020, TA’s behaviour had extended to the Court of Protection court office. The Operations Manager noted excessive email traffic generated by TA who copied in ‘100s’ of other recipients, along with excessive telephone calls with abusive comments, primarily directed at the judiciary. Further, TA made 39 COP9 applications over a 24 month period.

TA dismissed the evidence of the Operations Manager, describing the statement as a “badly drafted pathetic attempt at a fraudulent witness statement”.  He did not deny the volume of his correspondence but sought to justify it on the basis that HMCTS staff were engaged in a deliberate attempt to pervert the course of justice, in collaboration with the judiciary. 

The court found no justification for the volume and nature of the correspondence from TA. It was wholly disproportionate and no doubt a significant distraction for the court staff. The court cited the obiter remarks of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252 which considered general judicial case management powers to regulate communications with the court to avoid ‘a torrent of informal, unfocussed emails’. Support for this approach was further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ observed at para 35 that by exercise of the inherent jurisdiction, the court’s supervisory role extends to the regulation of the manner in which the court process may in general be exercised, including the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in ‘completely obsessive pursuit of their own litigation’. 

The court therefore proposed to make the ‘exceptional’ order of restraining TA from communicating with the court office by email and telephone. TA could continue to send letters if necessary, but he could not expect a response if his correspondence was abusive. While Brooke LJ contemplated the exercise of the inherent jurisdiction, the court proposed to rely on section 47(1) Mental Capacity Act 2005.

A penal notice was attached to the injunction. 

Recording interactions between social worker and parents

Is this becoming the norm? And if so, what are the consequences?

What is the impact of this practice on the working relationship between parents and social workers? Is this a good thing or do you find it concerning?

You may also be interested in this blog post by suesspiciousminds on the subject.

 

Section 36 Data Protection Act

The Data Protection Act makes it clear that individuals do not need the consent of professionals to record meetings/visits, as the information being discussed in that situation is personal to them and therefore exempt from the data protection principles. There may be problems if the meeting is going to deal with issues relating to a third party.

 

Update – Louise Tickle writes in the Guardian on 17th June 2015.

Louise Tickle, who attended the Child Protection Conference on 1st June, organised by the Transparency Project, was interested to hear comments from the parents about recording their meetings with social workers. This prompted comments from the lawyers present that they could see no objections to this practice. You can read her article here.

 

Recording and more specifically covertly recording

This is a guest post by Jacque Courtnage who runs the TaKen UK website which campaigns against the wrongful removal of children by the State. She has experience of the system both as a parent and a lay advisor to other parents in the family court.  Here are her views about what appears to be the growing practice of parents recording their interactions with social workers.

is becoming the norm and in some cases is being accepted as evidence by the courts. This is matter that does need further consideration and exploration by more of the courts.

I say this for a number of reasons as I have been present on many occasions where professionals, and in particular – social workers, have relayed pertinent information to the parents/carers and have then denied all knowledge of having said these things whilst giving evidence. I refer to conversations where either social workers have given the carers reassurance that no action will be taken or they have no concerns, and then when their witness statement has been produced, the complete opposite is stated. Because many of these parents all come before the courts disadvantaged, they are considered to be lying.

On the opposite side, we have also had social workers being aggressive and intimidating to carers and indeed some of the children involved, and when complaints are lodged, the parent is considered to only be doing so for vindictive reasons. Again the same with telephone calls. A lot of misinformation is being populated to parents by some social workers to ensure they either miss contacts or behave in certain ways that can then later be used against the parents in court.

I have attended many meetings as a mediator where communications have broken down between parents and LA. I have challenged where things were stated as fact but the professional would not go on record with their statement. I have challenged some of these individuals when they were giving evidence and their uncanny manner to feign amnesia is laughable. Had some of these things been recorded, many cases would perhaps be less detrimental to families involved.

Having said all of that, many parents also do lie. If recordings became the accepted norm, it would ensure there is no miscommunication or fabrication of events and that everyone involved will be forced to take responsibility for their actions and accountability will be able to become part of the transparency needed. If the individuals have nothing to hide and are behaving in a manner they would consider to be lawful, then there should not be any problem. The UK is full of CCTV that records everyone’s movements without the public going on a full riot, so why can this not then be rolled out to include public law areas?

Simply put, it protects everyone from unsavoury behaviour and starts to help making the system work the way it was meant to. There is just too much suppositions, speculations and individual personal perspectives involved in family law. Taking this to the next level, recordings will also help diffuse a problem as emotions are always heightened at times of intervention, and much is either misunderstood or misinterpreted. The recordings will allow for the individual who is aggrieved at the time, the opportunity to review the recording and see if they had perhaps initially overreacted.

The other matter is the recording of hearings and judgments. Whilst there must be legislation as to the use and availability of the recordings, the issue of getting transcripts is a rather problematic.  Despite Munby’s PD on judgment transcripts, these are still not being produced many weeks and months later. Many families involved in care cases do not have the finances to afford the exorbitant costs of transcribing 3 to 5 days Fact Finding hearings let alone a judgment. Recordings of hearings can be used to help progress cases for the Court of Appeal or indeed when they carer acts as as litigant in person because they do not qualify for funding.

 

A view from a family barrister

For discussions about the pros and cons of recording interactions from the family bar, please see this useful post on Pink Tape.  There are serious concerns about recording children and a warning that this can often back fire on the person responsible for the recording, particularly if the child is distressed. But with regard to recording interactions between parents and professionals, this has the potential to be helpful:

There are lots of reasons why a parent’s understanding, experience or perspective of a meeting might be very different from the professional – they may well not be a “reliable” historian in any forensic sense simply by virtue of the fact that emotions are high and the stakes are high also. But the truth of the matter is that sometimes social workers are also less than reliable – sometimes even untruthful.

I know that many parents would suggest that social workers are routinely and regularly untruthful, such is their desire to meet their targets to have children removed and secure their adoption bonus. Leaving that aside for one minute (I don’t think that is really what happens) I have met plenty of social workers who are just not great with detail, who don’t recognise their own emotional involvement and how it alters their own perspective and responses to a situation, and who are see, record and retell the history in an overly negative light. I have met social workers who seem to be prepared to gloss over the specifics of a particular conversation for the “greater good”, which is to secure the outcome that they genuinely think is best for the child.

I have sometimes suspected dishonesty on the part of a social worker but have rarely proved it. There are cases in which social workers have been caught out lying, but they are infrequent. Here is a notorious example of a case where the honesty of a social worker became a really big issue : Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008). Here is one recent example of where a recording was crucial : Man Wins Compensation After Recording Saves Him From Prison.

The view from CAFCASS

See para 2.27 from the Cafcass Operating Framework

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

Some service users ask in advance of an interview whether it can be recorded. Advice on handling advance requests from service users to record interviews is available on the Cafcass Legal intranet page. In cases where no advance request has been made and the practitioner subsequently becomes aware that they have been recorded without their knowledge, they should tell the court. In some cases, however, the practitioner may not become aware of the recording until the service user presents the recording, or a transcript of it, at court. In such situations, the practitioner should make clear to the court that the recording was made without their knowledge. The practitioner may ask for the opportunity to listen to the recording or read the transcript before it is admitted into evidence, if the court is minded to take this step. It is a matter for the court to decide whether the recording or transcript can be included in evidence.