Covert recordings in Family Law proceedings concerning children
Introduction
In May 2025, the Family Justice Council (FJC) issued guidance for both litigants and professionals on the use of covert recordings, those made without the knowledge or consent of individuals present, which a parent may wish to rely upon as evidence in family proceedings. This guidance was developed in response to the courts’ increasing encounters with such recordings. The FJC hopes the guidance will promote a more uniform practice and encourage agencies to develop clear policies on both overt and covert recording practices. The FJC stresses that although covert recordings may, on rare occasions, carry evidential value, their secretive nature often causes harm and raises concerns about privacy, manipulation, and trust. In particular, the covert recording of children is strongly discouraged. The guidance makes clear that such recordings very rarely serve a child’s welfare, regardless of the recorder’s intentions.
Covert recordings, both audio or visual, have become increasingly common with easy access to smartphones and increasingly small recording devices. This guidance reflects on Re B (A Child) [2017] EWCA Civ 1579, and identifies three core areas of covert recording: of professionals, of family members, and of children. Each have their own distinct challenges legally and ethically. The guidance is not a guide on how to create admissible recordings, rather, it is how the courts and professionals should respond to a party wishing to introduce such recordings.
A tension underpins this issue. While it is remarkably easy to make a covert recording, the process of litigating its admissibility and determining its evidential weight is resource intensive and time consuming. The guidance highlights the need for careful case management to ensure that such issues are addressed proportionately and without derailing the broader progress of the case.
The legality of covert recordings made by private individuals
Private individuals operate in a less clearly defined space than public bodies, such as local authorities (LAs), however, there are legal boundaries. Recordings made by parents or guardians, intending to use them in court, may be subject to UK GDPR and the Data Protection Act 2018. The use of such recordings outside of a domestic context constitutes data processing and therefore requires a lawful basis, otherwise, they may constitute a breach of this legislative framework. This is particularly sensitive where recordings concern children whose data is subject to a heightened protection under data protection legislation, with guidance specifically given by the Information Commissioner’s Office (ICO) stating any recordings of children and children’s data must not be used in a way that is detrimental to their welfare.
The FJC warn against the presumption of a “domestic purposes” exemption. In M v F (Covert Recording of Children) [2016] EWFC 29, Jackson J clarified recordings made to gather evidence in family disputes are unlikely to benefit from this protection. Further, covert recordings can amount to harassment or controlling behaviour, even where technically lawful conduct. While technology makes covert recording easy, the legal and ethical consequences are anything but straightforward.
Recordings of Children
The FJC strongly cautions against the covert recording of children, concluding that placing a recording device on a child is “almost always likely to be wrong”, regardless of whether the child is aware of this. The courts have rarely found the content of covert recordings of children to assist it in coming to a decision. The evidential value of these often lies in what they reveal about the recorder’s judgement. Often, there is a serious failure to prioritise the children’s welfare, denoting a lack of insight into the child’s needs.
In M v F (Covert Recording of Children), the court found that the act of recording caused significant harm: damaging adult relationships, undermining trust in professionals, creating a harmful secret for the child, and impacting the family’s reputation. Far from strengthening a parent’s case, such behaviour may be directly relevant to an assessment of their parenting capacity and their ability to protect the child from emotional harm.
The Recording of Professionals by Parents
There is a notable increase of parents recording professionals, both covertly and with permission. The FJC notes many agencies working within the family justice system lack clear policy and/or guidance to address this. However, the FJC recognise there is value in some recordings, referencing key cases where professional malpractice was unearthed through parents taking these recordings, leading to a fairer outcome that would otherwise have not been achieved.
The Recording of other Family members
Parents can turn to covert recordings to provide evidence of mistreatment or misconduct by another party. However, the FJC warns this behaviour can cross lines. Repeated covert surveillance of a partner or co-parent can reflect distorted thinking and may itself amount to evidence of harassment, controlling behaviour, or emotional abuse. Covert recording here is not a neutral evidence-gathering exercise – it can devolve into becoming a central issue in the case. The courts have held that covertly and repeatedly recording another family member can amount to a significant breach of privacy and remain highly relevant when determining a child’s welfare and future arrangements.
The Response of Professionals
The FJC advises professionals to proceed with enormous care when presented with covert recordings during proceedings. Before viewing or listening to any such material, professionals should not assume its authenticity and must first clarify with the parent the basis on which the recording is being shared and how the information may be used.
Crucially, the guidance emphasises that covert recordings should not be considered by professionals until the court has ruled on their admissibility through proper case management. This safeguards both due process and the integrity of the proceedings. Where intimate images are involved, further specific direction is provided in Appendix 3 of the guidance. Professionals are reminded that acting prematurely may not only compromise legal fairness but also risk breaching privacy, ethics, or safeguarding obligations.
A Structured Judicial Approach
Central to the Guidance is the approach the courts should take when evaluating the evidential value and admissibility of any covert recording. The guidance sets out a three-part test for judicial consideration: relevance, admissibility, and weight.
An part seeking to rely upon a covert recording must make a C2 application on notice, outlining:
The context, the content, and the time of the recording,
The method and reasoning for obtaining it covertly, and
Its relevance to the disputed issues.
When assessing relevance, the court must consider the material issues in the matter. Only if this threshold is met will the court proceed to determine admissibility and weight. In order to manage this effectively, the court should issue early case management directions. These should cover how and when the recording and any transcripts of the audio and/or video are disclosed; the scope and origin of the recording(s); the authenticity of the recording(s) and whether the editing of them is disputed; the probative value of the recordings; any issues surrounding impact on the welfare of those involved – particularly children; cost implications of assessing the evidence by the court, and whether a separate hearing is needed to rule on the admissibility of the recording(s).
Given that covert recordings are almost always hearsay, the court must consider whether they fall within the Children (Admissibility of Hearsay Evidence) Order 1993. Where the evidence is admitted, the courts must assess the weight attached to the evidence. Additionally, practitioners should be live to the FPR 2010 r.22 with regards to evidence.
Clarity and Professional Responsibility
The FJC highlights the importance of professional bodies within the FJS taking a proactive role in addressing the growing use of covert and overt recordings. Its recommendations to organisations are clear – there should be an effort to develop clear policy governing these types of recordings in relation to their work with families.
Where organisations establish protocols, professionals will be able to reduce tensions and mistrust that often leads to parents recording interactions without the knowledge of the other party. The guidance notes that where professionals are open to reasonable requests for meetings to be recorded, this can foster co-operation, enhance accountability, and minimise risk of disputes escalating into surveillance instead of focussing on the children at the centre of the matter.
Written by Head of Chambers and Senior Consultant Barrister, Lisa Edmunds.
Law is correct as of 27th August 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
