B (A Child), Re

Factual and Procedural Background

This appeal arises from private law proceedings before His Honour Judge Bellamy, sitting as a Circuit Judge in the Family Court at Leicester, between the parents of a girl born in May 2005. The father and mother were both unrepresented but assisted by McKenzie friends, while the child was represented by counsel instructed by her guardian. The appeal concerns two orders made by the judge: one dealing with substantive issues and another permitting publication of the judgment. A significant point in the case relates to the father's reliance on covert recordings of conversations with social workers, a Cafcass officer, and a solicitor, which the judge considered both in relation to their admissibility and more broadly to the issue of covert recordings in family courts. The Court of Appeal had earlier refused permission to appeal the substantive order but allowed further consideration regarding the publication order and the guidance given on covert recordings. The appeal was heard before the President of the Family Division and Lady Justice King, with the father appearing in person and assisted by his McKenzie friend, and the child represented by counsel. The mother was neither present nor represented.

Legal Issues Presented

1. Whether the judge's treatment of covert recordings in family court proceedings was legally correct and appropriate.
2. Whether the judge's judgment, including his guidance on covert recordings, should be published and made publicly available.
3. The appropriateness of a Circuit Judge providing general guidance on covert recordings in the family courts without wider consultation or endorsement.

Arguments of the Parties

Appellant's Arguments

• The father contended that the judge was biased in his treatment of the covert recordings and that the judgment did not realistically reflect the case.
• He argued against the publication of the judgment on the grounds that it would not only drive a further wedge between the parents but also negatively impact the child if she read the judgment freely available on the internet.
• The father challenged the procedural correctness of requiring permission to rely on covert recordings.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the significance of the covert recordings issue in family law and accepted the judge's analysis relating to the lawfulness, admissibility, relevance, and application of the recordings in the present case as sound and unimpeachable. However, the court expressed serious concerns about the judge's broader approach, particularly his generalised condemnation of covert recordings as antithetical to transparency, which was seen as overly sweeping and insufficiently nuanced. The court also criticized the judge's assertion that anyone seeking to rely on such material must apply for court permission, noting that while the Family Procedure Rules allow the court to control and exclude evidence, they do not explicitly require prior permission for lawful, relevant, and admissible evidence. Furthermore, the court questioned the appropriateness of a Circuit Judge issuing wide-ranging guidance on this complex and emerging issue without the benefit of professional, adversarial argument or wider consultation by bodies such as the Family Justice Council or the Family Procedure Rule Committee. The judge's extensive effort to stimulate discussion was considered laudable but misplaced in this case. The court highlighted the need for properly formulated guidance issued through established statutory or consultative channels rather than by individual judges in single cases.

Regarding publication, the court faced a dilemma: publishing the judgment as is with a warning was inadequate due to the presence of problematic passages; extensively revising the judgment was inappropriate given the case's nature and limited expert input; and redacting specific paragraphs was impractical given the extent of the problematic content. Consequently, the court concluded that the judgment should not be published publicly. The court also emphasized the importance of the issue and invited the Family Justice Council to undertake a multidisciplinary review of covert recording in family courts, considering the materials annexed to the judgment and wider discussions in the field.

Holding and Implications

The court GRANTED PERMISSION TO APPEAL on the issue of publication and ALLOWED THE APPEAL to the extent of setting aside the part of the judge's order permitting publication of the judgment. The judgment is therefore NOT TO BE PUBLISHED publicly, including on legal databases such as Bailii.

This decision directly affects the parties by restricting public access to the judgment's content on covert recordings, reflecting concerns about the appropriateness and accuracy of the guidance contained therein. No new binding precedent was established, but the court highlighted the pressing need for authoritative, multidisciplinary guidance on covert recordings in family proceedings, recommending that the Family Justice Council address the issue comprehensively.