This is an appeal in a case which would otherwise be unremarkable, except to the parties. However, it raises a point of no little public importance (though it has no impact on the substantive orders made by the judge), in relation to which my Lady, King LJ, gave directions when the matter came before her, on 13 September 2016, on the father’s application for permission to appeal: Re B (A Child) [2016] EWCA Civ 1088.

The appeal is from an order made on 23 June 2016 by that careful and always meticulous judge, His Honour Judge Bellamy. He was sitting as a Circuit Judge in the Family Court at Leicester (of which at that time he was the Designated Family Judge; he is now the Designated Family Judge at Derby) hearing private law proceedings between the two parents of a girl born in May 2005. The father was unrepresented but had the assistance of a McKenzie friend, Mr Stuart Graham. The mother was also unrepresented but likewise had the assistance of a McKenzie friend. The child was represented by counsel, Ms Victoria Clifford, instructed by her NYAS guardian.

The point which is now before us arose because, as my Lady explained (Re B, para 6):

The judge handed down his reserved judgment on 2 June 2016. It runs to 166 paragraphs. He made two orders. The first, also dated 2 June 2016, dealt with the substantive issues in the case. By the other, dated 23 June 2016, the judge ordered that his judgment be published on the normal terms. His reasons for doing so were set out in a second judgment, running to a further 31 paragraphs, handed down on 24 June 2016.

The father sought to appeal both orders. In relation to the first order, my Lady refused permission to appeal, for reasons set out in her judgment which there is no need to rehearse. In the course of this part of her judgment she had to address the father’s complaint that the judge’s treatment of the covert recording point demonstrated bias on his part. Rejecting this complaint as unarguable, my Lady said this (Re B, paras 7-9):

My Lady set out her overall conclusions as follows (para 19):

In the relation to the second order my Lady said this (paras 20-24):

In accordance with my Lady’s order, the appeal came on for hearing before us on 10 November 2016. The appellant appeared in person, assisted by his McKenzie friend, Mr Graham. The child was represented, as before Judge Bellamy, by Ms Clifford. The mother, as when the matter was before my Lady on 13 September 2016, was neither present nor represented.

Before turning to consider Judge Bellamy’s judgment on the covert recording point, some preliminary observations are in order.

The courts have had to grapple with the legal and procedural issues generated by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial. Since the second half of the nineteenth century the courts have had to grapple, and keep up, with the legal and procedural issues generated by the invention of technologies for the audio or visual recording of events. On one level there is nothing very new about this. Thus, the covert filming or video-recording of personal injury or benefits claimants suspected of fraud has been an established and acceptable practice for many years. But in the family courts the issue has become much more pressing in recent years. (Footnote: ¹)

There are, I suspect, two reasons for this. One is the ever increasing sophistication and miniaturisation and at the same time ever decreasing cost of modern recording equipment. For anyone possessed of a smartphone or similar piece of ‘kit’, surreptitious audio recording or filming of events is child’s play. As Peter Jackson J sagely commented in M v F [2016] EWFC 29, [2016] 4 WLR 92, para 1,

That said, it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual. In Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 a mother made covert recordings of the abusive and racially insensitive foster carer who she was living with along with her baby; until the recordings were played she had been disbelieved. (Footnote: ²) In Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149 (Fam), [2017] 1 FLR 1304, the lamentable shortcomings of an expert, a consultant clinical psychologist, were, in significant measure, laid bare only because the mother had covertly recorded her assessment sessions with him.

It is important to distinguish between open recording and covert recording. In the nature of things, it is the latter which is more problematic. Without seeking to establish a complete taxonomy, there are at a least three categories of covert recording, each of which may raise a variety of different issues (see the careful comment of Peter Jackson J in M v F [2016] EWFC 29, [2016] 4 WLR 92, para 7): covert recording of children (for an example see M v F [2016] EWFC 29, [2016] 4 WLR 92), covert recording of other family members (for an example see Re C [2015] EWCA Civ 1096), and covert recording of professionals (see, in addition to the cases referred to above, the Transparency Project’s Parents recording social workers – A guidance note for parents and professionals published in December 2015, version 2, January 2016).

Whatever the nature of the recording, a number of issues are likely to arise. Again without any pretence to completeness it is obvious that questions may arise as to (i) the lawfulness of what has been done; (ii) best practice outside the court room as it were; (iii) the admissibility of the recording in evidence; and (iv) a variety of other evidential and practice issues (for example, as to how the recording is to be put in evidence, problems in relation to sound and picture quality, and, in particular, disputes as to authenticity – who are the people who can be heard or seen on the recording, has the recording been edited or ‘cut and spliced’? – which may necessitate calling expert evidence).

Furthermore, in relation to all this it may be important to identify who is doing the recording and why. Covert surveillance and recording by the police and other agencies, including the Security Service, which in current conditions not infrequently impinges upon the family courts, is one thing. Covert surveillance and recording by others may – I put the point no higher, it being a matter for another day – raise rather different issues.

I draw attention to these matters to show that covert recording in the context of the family courts potentially involves a myriad of issues, very few of which, despite all the judgments to which I have referred, have, even now, been systematically considered either at first instance or in this court.

Judge Bellamy’s main judgment runs, as I have said, to 166 paragraphs. The part that deals with the covert recording point runs to 18 paragraphs (paras 103-120). Having as it were set the scene (paras 103-106), the remaining sections of this part of the judgment are arranged under the following headings: “lawfulness” (paras 107-109), “admissibility” (paras 110-111), “relevance” (paras 112-113), “applying for permission to rely on covert recordings” (paras 114-117), “the present case” (paras 118-119) and “wider discussion” (para 120). In the course of this, Judge Bellamy referred to four judgments: that of Her Honour Judge Lazarus in Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66, that of Roberts J in H v Dent & Ors [2015] EWHC 2090 (Fam), that of Peter Jackson J in M v F [2016] EWFC 29, [2016] 4 WLR 92, and that of Underhill J in Vaughan v London Borough of Lewisham [2013] UKEAT 0534_12_0102. He also referred to FPR 22.1.

Under the heading “wider discussion” (para 120), the judge referred to the fact that he had, with the agreement of the parties,

Conformably with my Lady’s views (Re B, paras 7-9, 19) there is much in what the judge said under the headings “lawfulness” (paras 107-109), “admissibility” (paras 110-111), “relevance” (paras 112-113), and “the present case” (paras 118-119), with which I would not quibble. Broadly speaking, the judge’s approach to the covert recordings was in accordance with the law as it now stands, and his reasoning in the ultimately decisive paragraphs dealing with “the present case” (paras 118-119) was, I agree with my Lady, unimpeachable.

On the other hand, in relation to the introductory part (paras 103-106) and the parts dealing with “applying for permission to rely on covert recordings” (paras 114-117) and “wider discussion” (para 120), I do, with all respect to the judge, have a number of very serious concerns. I shall take them in the order in which they appear in the judgment.

The judge said (para 104) that:

In relation to the part headed “applying for permission to rely on covert recordings” (paras 114-117), I have two quite separate concerns.

The first relates to the premise underlying the whole of the judge’s analysis under this heading, namely that, as he put it (para 114), “Anyone seeking to rely on such material must … apply to the court for permission.” FPR 22.1, to which he refers, undoubtedly empowers the court (FPR 22.1(1)) to “control the evidence” and (FPR22.1(2)) to “exclude evidence that would otherwise be admissible.” But that is not the same as saying that the permission of the court is required before lawful, relevant and otherwise admissible evidence can be adduced. This is a matter that requires more detailed analysis, including of the FPR, before one can safely conclude that what the judge said is correct.

The other concern is that which my Lady has already articulated (Re B, para 23). The judge has gone on (paras 116-117) to set out guidance as to how such an application should proceed, his guidance being, in effect his exegesis in this context of the ‘overriding objective’ in FPR 1. He sets out his views as to how an application for permission, as he would have, should be made and then sets out “in the light of experience, and in particular experience in this present case” what he “venture[s] to suggest” are the issues that the written statement in support of the application should address. These are not matters that the judge needed to address in order to decide the case before him fairly and justly. Moreover, he embarked on the whole exercise in a case where, because both the father and the mother appeared in person, he did not have – and this, I emphasise, is no reflection at all upon Ms Clifford, or, for that matter, Mr Graham, who seems to have been well informed on the point – the benefit of sustained, professional and adversarial argument. Most fundamentally, however, this was not, with great respect to the judge, an exercise appropriately undertaken by a Circuit Judge.

There is a variety of ways in which guidance for the family courts is, as a matter of current practice, formulated and disseminated. The President of the Family Division can exercise the statutory function, delegated to him by the Lord Chief Justice, of issuing a Practice Direction. The President can issue non-statutory Practice Guidance. The Family Justice Council can issue guidance, which typically bears the President’s endorsement (a recent example is Guidance on “Financial Needs” on Divorce, published in June 2016). The President can commission a piece of work from some appropriate expert which is then issued with his imprimatur (for example, The Family Courts: Media Access and Reporting – Guidance issued by the President of the Family Division, Sir Nicholas Wall, the Judicial College and the Society of Editors, issued in July 2011). Very typically, all these various forms of guidance are the result of processes which, even if they do not involve wider consultation, will have involved the input of the Family Justice Council and/or the Family Procedure Rule Committee.

Finally, there are so-called ‘guidance judgments’, delivered either by the President or by another judge of the Family Division, reflecting the need for more general guidance on a topic which has arisen in a particular case and in relation to which the judge has had the benefit of detailed submissions from counsel. Very frequently, a ‘guidance judgment’ given by a judge of the Family Division will, with the President’s agreement, record the fact that it has, in relation to such guidance, been read and approved by the President: see Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FLR 944, paras 4, 6, 98. It is not, however, part of the functions of a Circuit Judge sitting in the Family Court to deliver such a judgment.

Finally, it was not, with respect, an appropriate objective in a case such as this for the judge to devote so much time and resource in order, as he put it (para 120), to “stimulate discussion.”

I should make clear, for the avoidance of doubt, that nothing I have said should be understood as preventing a Designated Family Judge from issuing, in appropriate circumstances, and always assuming that it is compatible with the law and general practice and with any nationally applicable guidance, local guidance intended for purely local use within the area of his responsibility as Designated Family Judge and dealing with local practice and procedure in the courts for which he has responsibility. That is not, of course, what Judge Bellamy was doing here.

Having got to this point, I return to the central question: What is this court to do?

Leaving aside, for the moment, the ground on which the father wishes to challenge the judge’s decision to direct publication of the judgment (see Re B, paras 21, 24), I turn to address the point identified by my Lady (Re B, para 23):

This, in my judgment, faces us with a difficult dilemma. For the reasons I have already given, the judge embarked upon a process which, however laudable his aims, he should never have undertaken and, more importantly, has produced a judgment which in relation to covert recording is open to serious challenge.

There are, I suppose, the following alternatives open to us:

One would be to permit the judgment to be published as it stands, hoping that our judgments today will act as a sufficient ‘health-warning’. This, in my judgment, would not be satisfactory. The judgment would be in the public domain, albeit with a ‘health-warning’ but without fully reasoned judgments from us correcting, as opposed to merely identifying, errors or possible errors in the judge’s analysis. This would be particularly unhelpful, indeed pregnant with future uncertainties and difficulties, as my Lady has suggested, in a field where so many of the issues seem to arise in the Family Court, often in cases involving litigants in person and McKenzie friends for whom the judgment might be confusing, indeed, positively unhelpful.

Another would be for us to elaborate our judgments, so as to spell out, more specifically and in much more detail, not merely what is or may be wrong with the judgment but, where there has indeed been error, setting out what the law and practice are, or in the latter case ought to be. This, in my judgment, would not be appropriate: in the first place, the present case is not an appropriate vehicle for us, any more than it was for the judge, to be embarking upon such a wide-ranging exercise, and, secondly, we are ill-equipped to do so in a case where the representation is as it is and where, despite the written input from those whose submissions the judge annexed to his judgment, we do not have the width of expert input which would be available to the Family Justice Council and the Family Procedure Rule Committee.

The other course would be to allow the judgment to be published but without some of the more questionable paragraphs. This, which might at first blush seem both feasible and appropriate, is, in my judgment neither. Short of omitting the entirety of paragraphs 103-120, which would have the undesirable consequence of omitting paragraph 119, the problematic aspects of the judgment, as the discussion in paragraphs 20-27 above demonstrates, appear in enough places to make it very difficult to see how, without a wholly inappropriate amount of editing, the judgment could be suitably redacted.

In my judgment, the least inappropriate and unattractive of these alternatives is to direct that the judge’s judgment is not to be published. For my part I would therefore propose to give permission to appeal on this point and to allow the appeal to the extent of setting aside the relevant part of the judge’s order of 23 June 2016 and, in its place, directing that the judgment is not to be made publicly available, whether on Bailii or elsewhere.

In these circumstances, if my Lady agrees, there is no need for us to consider the alternative basis of appeal put forward by the father, for he will have achieved his objective, albeit for quite different reasons. That said, I am sceptical as to whether he would have succeeded in his challenge.

What Judge Bellamy’s endeavours have usefully demonstrated, in my judgment, is the need for consideration to be given to what is a topic of growing significance for family courts in relation to which there is, at present, surprisingly little authority and no adequate guidance. In that sense his intervention has been both timely and useful. I propose therefore, as a first step, to invite the Family Justice Council, which as a multi-disciplinary body is particularly suited to undertake the task, to consider the whole question of covert recording from a multi-disciplinary viewpoint. It will no doubt wish to consider the various documents annexed to Judge Bellamy’s judgment as well as all the other materials I have referred to. There are also interesting discussions to be found on the blogosphere – for example, in the Suesspiciousminds and Pink Tape blogs; no doubt there are others – which merit careful consideration.

I agree.