Gemma Adams provides a helpful reminder of why you must not record court hearings – and what the repercussions could be

What is the legal framework that states I cannot record hearings in family proceedings?

There are various laws and guidance that set out why court hearings must not be recorded, here are a few:

1. Section 97 Children Act 1989 sets out at paragraph 2 that:
   
   No person shall publish [to the public at large or any section of the public] any material which is intended, or likely, to identify:
   
   a) any child as being involved in any proceedings before [the High Court] [or the family court] in which any power under this Act [or the Adoption and Children Act 2002] may be exercised by the court with respect to that or any other child; or
   b) an address or school as being that of a child involved in any such proceedings.
   
   Under paragraph 6 of the same section, any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 (current maximum £2,500) on the standard scale.
   
2. Rules 27.9 and 27.10 of the Family Procedure Rules (FPR) 2010 provide that:
   
   “No party or member of the public may use unofficial recording equipment in any court without the permission of the court. (To do so without permission constitutes a contempt of court under section 9 of the Contempt of Court Act 1981”).
   
   The rule further provides that family proceedings will be held in private (i.e., without the public).
   
3. Section 9 Contempt of Court Act 1981 sets out at paragraph 1 that:
   
   It is a contempt of court to:
   
   a) use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave (permission) of the court;
   
   It is also a contempt of court to publish a recording of legal proceedings.
   
4. Section 12(1)(a) Administration of Justice Act 1960 has the effect of making it a contempt of court to publish:
   
   “…information relating to proceedings before any court sitting in private … where the proceedings
   
   (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
   (ii) are brought under the [Children Act 1989] or the [Adoption and Children Act 2002]; or
   (iii) otherwise relate wholly or mainly to the … upbringing of a minor.”
   

What are the exceptions to this rule?

Audio recordings are made of every hearing in the family court unless the court directs otherwise. If you are a party to family proceedings and would like to obtain a transcript of a hearing, you can request this from the court and will need to make the necessary payment (this could be covered by your Legal Aid Certificate, if you are in receipt of legal aid and your solicitor should be able to advise you on this, or may be covered by the court, if justified).

What recent case has reminded us of these rules?

In the recent case of His Majesty’s Solicitor General v Wong (Re Contempt of Court Act 1981 – Administration of Justice Act 1960 – Part 37 Family Procedure Rules 2010) [2023] EWHC 2684 (Fam) (27 October 2023), The Honourable Mr Justice Cobb considered a contempt of court application made by His Majesty’s Solicitor General (Applicant) against the Defendant (Jason-Steven Wong), the father of a child subject to adoption proceedings. The Applicant alleged that the Defendant made a covert (secret/not openly acknowledged) audio-recording of a final hearing in adoption proceedings at the Family Court in Nottingham, before HHJ Watkins on 18 February 2022 and that, within a few days of the court hearing, he disposed of (provided) the recording to another person, with a view to them publishing it on YouTube.

The Family Court in Nottingham confirmed that at the time of the hearing, there would have been notices around the court building, including outside all courtrooms, on a central noticeboard at the public entrance, at the entrance and at security which state that it is an offence to take unauthorised photo or record video anywhere in the building. Audio recordings are not allowed in the hearing rooms.

Mr Justice Cobb found that the Defendant knowingly brought a hand-held recording device into the Family Court on 18 February 2022, and intended to, and did in fact, use it to record the entirety of the hearing, and that on a day between 18 to 27 February 2022, the Defendant “disposed of” the recording to another person, who subsequently posted the same, together with other material relating to the adoption proceedings, on YouTube. The Judge further commented that the public identification of a child subject to adoption proceedings poses a number of risks, such as threatening the “security and confidentiality of the new placement, and the emotional stability of the child and their new parents”.

A further hearing was listed in this matter on 21 November 2023 for Mr Justice Cobb to consider sanctions for the proven contempt. A copy of the Judgment has been published. The Defendant was sentenced to four months’ imprisonment in total and ordered to pay the costs of the Applicant in the sum of £5,000. The Judge reiterated that the “prohibition on recording family proceedings and on publishing certain information relating to family proceedings is vital to the integrity of family proceedings” and explained that the “punishment needs to reflect the court’s profound disapproval when the child is named”.

The bottom line is – only the court can record proceedings, family proceedings are held in private and publication of details is not permissible without the court’s consent. The proper channel to obtain a recording of a hearing is to apply to the court for a transcript which either will have to be paid for privately, or may be covered by public funding or the court, depending on the relevance and importance of the transcript to the overall case or a specific aspect of the case.

Should you need any advice about family proceedings concerning children, we at Dawson Cornwell would be happy to assist you with this. Please do not hesitate to contact us on +44 (0)20 7242 2556 or mail@dawsoncornwell.com 

Gemma Adams

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.