The issue of covert recordings within family proceedings has been described by the President of the Family Division as a ‘growing area for the courts to consider with little guidance available to judges or other professionals.’ As such, the guidance document published by the Family Justice Council on 15 May 2025 is undoubtedly welcomed by practitioners to assist in tackling this increasingly common issue encountered in family proceedings.

The guidance can be found at Covert recordings in Family Law proceedings concerning children – Courts and Tribunals Judiciary and is accompanied by a shorter summary document to be used as a guide for litigants. It comprehensively deals with the following topics, as summarised below:

Introduction and scope

Covert recordings are defined in the guidance as ‘any recordings made without the express knowledge and permission of the people being recorded whether by video or audio’ (paragraph 1.2). In the context of family proceedings, this may include the covert recording of children, professionals, and any other family members. Quite often in practice, that being the other parent.

The guidance highlights that with advances in technology and modern recording equipment, it is far easier in recent years to record another individual without their knowledge. As set out by Sir James Munby in Re B (A Child) [2017] EWCA Civ 1579 at [16] ‘…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.’

Despite recognising that in some cases covert recordings have been of evidential value, the guidance warns of the harmful and intended consequences to anyone subject to the inherent intrusion of being recorded without their knowledge. It gives a clear message that the conduct of those who make the cover recording is likely to be a consideration of the case and ‘the covert recording of children rarely promotes a child’s welfare whatever the intention’ (paragraph 1.5).

Relevant law and statutory framework

The guidance focuses on private individuals, recognising the distinction compared to laws governing public bodies and commercial enterprises. UK GDPR, as tailored by the Data Protection Act 2018, applies to both professional and individual citizens, setting out rules in relation to strong, retention and sharing of data and is regulated by the ICO. While personal data processed in the course of a purely personal or household activity with no connection to a professional or commercial activity is usually considered outside of the UK GDPR scope, the guidance notes that it is a misapprehension to consider that recording in a domestic setting means the recording is not subject to the data protection legislative framework.

The guidance makes clear there is an absolute prohibition on the covert recording of court hearings which, without permission, constitutes contempt of court under s9 Contempt of Court Act 1981 and can result in serious penalties.

Why individuals undertake covert recordings:

The guidance categorises three main types of covert recordings encountered by the family courts as follows:

(a) Parents recording professionals

This is described as a ‘growing phenomenon’, although not reflected within the policies of many professional agencies. Organisations have identified a number of reasons for parents wishing to record including a lack of trust stemming from previous experiences such as not receiving notes or perceived inaccuracies/ omissions which have been hard to challenge in the past, not wanting to rely on professionals’ notes or wait for those notes, evidence gathering for later use in court proceedings, and using recordings for other purposes such as circulating for a campaign on social media.

It is recognised that professionals should be able to defend what they say and that in recent years covert recordings have been used to evidence professional malpractice, such as bringing to light the scandals involving care homes. Cafcass advise their practitioners to always be transparent and there is no legal reason why a parent or carer should not record their own interview, subject to any court direction. Family Court Advisers are advised to inform parents they will include in the report that the interview has been recorded.

While it is hoped that recording professional interactions are not necessary, on certain occasions recordings have been of probative evidential value. For example in Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149, where the discrepancy recording of a meeting with a consultant clinical psychologist and the psychologist’s report, led Mr Justice Hayden to be satisfied that the mother had been significantly misquoted and adversely misrepresented and in Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 (2 June 2015) where covert recordings of the foster carer in a mother and baby placement being racially abusive and hostile proved pivotal at a final hearing in dismissing the credibility of the foster carer’s allegations and establishing concerns of the parents.

That said, the guidance highlights there are circumstances where covert or overt recording undermines the validity of expert assessments and professional bodies are urged to develop their own policies in relation to both overt and covert recordings.

(b) Recordings by parents of each other

While acknowledging the common perception that covert recordings are the only way to illustrate their experience of the other parent’s behaviour, the guidance notes that recording is a form of surveillance that can demonstrate ‘distorted and obsessive thinking that can constitute a form of harassment or be controlling or abusive’.

The substantial invasion into the other parent’s privacy has been considered highly relevant to the welfare determination when considering child arrangements.

(c) Covert recordings of children

Despite parents often recording their children in the belief this will offer some significant evidence relating to a disputed issue in their case, this is rarely the case. The guidance articulates the profound consequences for the child subjected to this invasion of privacy and breach of trust, and ‘The fact of the surveillance or ‘bugging’ of the child may have more evidential value in indicating the capability of the parent to understand and promote their child’s emotional needs and protect them from harm.’ (para 3.12).

Cafcass expects FCAs not to listen to or view recordings made by parents until the court has determined if the material can be admitted into evidence, and the guidance recommends this approach for all professionals presented with covert recordings.

Case management: establishing the status and admissibility of covert recordings in court proceedings

Courts are required to engage in focused case management before establishing the admissibility of covert recordings and their probative value. The guidance stresses the importance of identifying such issues at an early stage to effectively case manage and avoid satellite litigation.

Directions by the court should cover:

• The method of disclosure of the recordings to the other parties, including whether transcripts are required.
• Establishing the full scope of the recordings, how they came about, and which recordings fall to be considered.
• Establishing authenticity if in dispute, including any issues relating to editing.
• Establishing the probative value of the recordings to relevant issues in dispute.
• Consideration of implications for the welfare of the parties, and in particular the child if having been the subject of covert recordings.
• Consideration of costs arising from the application.
• Any further hearing to determine the issue of admissibility.

Furthermore, the courts need to consider the risk of emotional and psychological harm to the parties, particularly alleged victims of abuse, by indiscriminate use of covert material involving intimate images.

It is stated in the guidance that almost all covert recordings will be hearsay evidence recordings must be considered as ‘documents’ to which the relevant evidential rules apply. As noted by LJ Neill in Re W (Minors) (Wardship: Evidence) [1990] 1 FCR 286 “‘[H]earsay evidence is admissible as a matter of law, but… this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.’ The key issue for the court to determine where a child has been covertly recorded is the extent to which the hearsay evidence should be admitted or excluded under FPR 2010 r22.1.

In terms of the process which should be adopted, courts must be provided with the details necessary to carry out a proper determination of the factors relevant to the consideration of whether a covert recording should be admitted into evidence and the weight to be given to the recordings as hearsay evidence. The guidance states that any application should be made on notice via a C2 form setting out the nature of the recording, the method of recording and why obtained covertly and the relevance of the contents to the issues in the proceedings (para 4.18).

Ultimately in considering proportionality of directions regarding whether to admit the covert recordings, even assuming their authenticity, relevance and probative value will be key.

When considering the scope and authenticity of recordings, the guidance warns the court to be vigilant that such material may have been edited selectively. In order to prevent this, steps should be taken to preserve the entire recording, and consideration should be given to the necessity of a transcript and whether the instruction of a forensic expert in compliance with PD 25 is necessary and proportionate. This instruction may consider factors such as context, interrogation of devices, metadata analysis, default recording and file formats, timestamps, glitches, flaws, splices and chops, background noise, voice texture and vocal content.

When authenticity cannot be established, the recording should not be admitted as evidence in terms of being probative of the content of the recording but may still be admissible in relating to relevant considerations of the child’s welfare of parties’ conduct.

The guidance states that ‘Questions of compliance and legality are relevant to the question of admissibility, but there is no automatic bar to admissibility of evidence that has been improperly or illegally obtained.’

Particular considerations relating to the covert recording of children:

The guidance gives particular attention to the pertinence of such recordings as part of the overall relevance to the welfare analysis. It may be seen to highlight the parent’s willingness to sacrifice the child’s emotional welfare in order to attack the other parent. This was noted for example in Re C (A Child) [2015] EWCA Civ 1096 where the father was criticised as ‘…quite unable to understand that his frequent recording and photographing of [the child] is emotionally abusive of her. As [the child] grows up, what is she to make of it? She will know, if she does not already, that [the father] is looking all the time for the means to criticise [the mother].’

Further dilemmas which may be encountered include the issue of representation through appointing a Children’s Guardian, taking into account the child’s article 6 and article 8 rights, in addition to consideration of whether the child’s welfare requires them to be informed they have been the subject of recordings.

Any party wishing for the child to give evidence should make a C2 application and the court will seek to find a balance between the advance of hearing the child’s evidence and possible damage to their welfare by giving evidence, taking account the relevant guidelines.

The court will need to consider the fact-specific context within which the recording has been obtained as well as whether the views expressed appear freely given when determining the weight to attach to any recording. For example, where there is repeat questioning, leading and suggestive questioning.

Intended and unintended consequences: further implications and issues arising from covert recordings

The guidance raises the issue that a revelation of covert recordings can result in a ‘domino effect’ of additional litigation. This may stem from the cost consequences of managing recordings, derivative civil actions, the risk of injunctive proceeding and criminal exposure relating to harassment. As raised throughout the guidance, secret recordings of a parent may provide evidence of controlling or coercive behaviour, demonstrating possessive and obsessive tendencies, and ultimately the welfare of both parents is relevant to the welfare of the child.

Publication of covert recordings

Although afforded consideration within the guidance, it goes without saying that even where recordings are themselves lawful, the restrictions in law on use of the recording must be considered and publication can have major implications in terms of the privacy and welfare of those subjected to covert filming.

The consequences can be particularly harmful to the child where it leads to the potential for them to be identified or simply due to the emotional impact of having details of their private life publicised.

Views of young people:

The guidance was developed in consultation with the Family Justice Young People’s Board which underlined the negative and harmful impact of covert recordings on young people. They described likely feelings of betrayal and discomfort, the potential for manipulation and coercion as recordings representing a breach of trust and violation and reported the inevitable risk of emotional/ psychological harm as well as a serious threat to relationships.

Reducing the perceived need for covert recordings of professionals: developing policies on overt recording

In recognition of the various motivations for individuals covertly recording professionals, which can largely be attributed to a significant breakdown in trust, the guidance proposes the development of policies and procedures regarding overt recording.

Guidance from Nagalro (the professional association for Children’s Guardians, Family Court Advisers, and Independent Social Workers) highlights the various advantages of allowing requests to record meeting including to ensure suspicious clients can work more constructively with professionals, allowing clients to concentrate on the work rather than making notes and rebutting allegations of inaccurate or improper comments by practitioners.

Professional agencies are recommended to develop clear policies outlining when such recordings can be made by consent as a matter of good practice.

Concluding observations

Overall, this long-awaited guidance on such an important and growing issue within the family courts will offer a high valuable resource for both litigants and practitioners involved in family proceedings. It will undoubtedly come in hand as the increasing sophistication of modern technology available to individuals inevitably allows for the more frequent deployment of covert recordings across various settings.

While it is positive that there appears to be a recent recognition of the need for professional agencies to develop policies to deal with these situations, it is difficult to see at this stage how the covert recording of both children and other family members, compared to recordings of professionals, can be tackled as effectively.

The onus will, to a large extent, be on practitioners to make clients aware of the implications in terms of how the courts will view covert recordings as part of the overall welfare analysis and ensure that when the existence of such recordings come to light, they are dealt with effectively through robust and proper case management.

Victoria Steet

Family Pupil