Following our news item on enforcing court-ordered contact, a family lawyer told us that she heard a Sheriff say recently that he wished that parents would take voice or video recordings of abusive/bad behaviour by the other parent. The Sheriff pointed out, she said, that a picture paints a thousand words and a recording replays them.
This is undoubtedly a controversial view from the bench and is by no means unanimous.
We know of cases where the production of recordings of telephone calls by the non-resident parent has been admitted as evidence and has undoubtedly helped his case.
However, we know of cases where sheriffs have stated that the recording of calls or exchanges at handover is indicative of devious and manipulative behaviour by the non-resident parent. It harmed his case.
We also know of bar reporters who have stated that fathers who video recorded their time with their children or voice recorded conversations are somehow suspect characters and have ‘marked them down’ in the recommendations they make about contact.
Our view is that taking photographs and videos of your time with your kids is daily normal behaviour in families who live together and should be seen no differently when parents live apart. We have never seen a bar report that even mentioned that a parent with care has taken videos or photographs of the kids, far less made critical comments about it.
There is a generally accepted hierarchy of evidence in court cases with evidence given in person under oath at the top. That is because it can be cross-examined and the sheriff can make an assessment of the witnesses’ credibility and reliability.
Documentary evidence specifically prepared for the court comes next – bar reports – for example. E mails and text messages can be useful at this level if they are presented in the right way because they can be dated and timed.
Notarised affidavits come lower in the hierarchy. They are sworn legal documents but by definition can’t be cross-examined. Affidavits given by professionals such as GPs – who may also submit a letter signed “on soul and conscience”. It may sometimes be unfair but affidavits submitted by family and friends will inevitably carry less weight. It depends what they are swearing too.
Video and audio recordings and recordings of phone calls will come next. The criticism that is made of them is that they can be ‘set ups’ when one side knows the recording is taking place and the other doesn’t. Lawyers for the other side will usually challenge them and can assert that they may have been edited and/or manipulated. Recordings are most useful if they clearly confound statements that have been made by the parent with care.
It is not necessary to state that a recording is being made. Many people are of the erroneous view that video or voice recordings is illegal in some way.
The lawyer commented “In my view in these circumstances it is not illegal, and the courts have heard and acted on videos and voice recordings made by several of my clients in the past. While arguably a parent should never stand by and video the other parent physically attacking their 16 year old son while drunk – as happened in one case, at least the court saw that it had happened, which was denied by the mother in that case.”
FNF Scotland welcomes the opening of this discussion. Many non-resident parents feel the burden of proof is weighted against them and audio and video recording of their kids being relaxed and enjoying their time with their father is all they can do when the court is being told the kids ‘don’t want to go’ etc.
Similarly they can give a fuller picture of the hostility that may take place at handover. But we would also caution parents that their motives for taking pictures can be questioned in court, and also that pictures or video don’t necessarily “prove” what actually happened. They may only prove that there is conflict between the parents and that won’t please most sheriffs.
We also know that some contact centres have restrictions on photography, so check their policy before using a camera if that is where your only contact takes place.
It is also best to avoid posting critical captions or other comments on Facebook or other social media sites in case these are produced in court, although either parent should be free to post pictures of their own children.
We would be very interested to hear about other experiences with taking and using pictures or sound recording in family cases.
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