Secret (or Covert) Recordings in Family Proceedings Concerning Children
It is not uncommon for a client to say they have a video of an incident or a recording of an argument between them and their partner and/or child in family proceedings, which they took secretly either to gather evidence or to protect their position in a situation (often with respect to children’s proceedings). These are known as covert recordings, they are any recording made without the express knowledge and permission of the person recorded, whether by audio or video.
This trend has increased due to ready availability of laptops/tablets, smart phones and even watches which have video/sound recording features.
The Family Justice Council in 2025 also noted this trend and they issued guidance about this because the courts are, on an increasingly frequent basis, being asked to consider recordings which are made without the knowledge of the other party or parent, the child(ren) or professionals as evidence within family proceedings. There was prior a lack of guidance about this which meant that there had been an inconsistent approach to the issue by the courts
The guidance states at the outset “whilst some convert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children and professionals, causing harm and often leading to concerns about the accuracy of the recording” [and that “the covert recording of children rarely promotes a child’s welfare whatever the intention” ].
What is clear from the guidance is that any issues relating to covert recording must be identified early on and should be seen as a key issue for case management to effectively manage its impact on the case and avoid costly arguments in Court.
There are several elements required for proper case management and for determining the admissibility of such evidence and will result in the court needing to make directions which cover the following:
- The method of disclosure of the recordings to the other parties, including whether transcripts are required
- Establishing authenticity if in dispute, including any issues relating to editing
- Consideration of implications for the welfare of the parties, and in particular any children
- Evaluating the full scope of the recordings, how they came about, and which recordings fall to be considered
- Determining the probative value of the recordings to relevant issues in dispute
- Consideration of costs arising from the application
- Any further hearing to determine the issue of admissibility
Most if not all covert recordings will be hearsay evidence. The determination will be fact and case specific and should be made by the court.
It is also worth noting that with respect to children, one needs to be particularly cautious because the guidance states that: -
“In general, courts do not approve of covert recordings of children. Young people have told us covert recordings of them are an invasion of privacy and may cause them to feel that the adult has broken their trust…… The court will need to think about whether all of this is harmful to the child”.
If you do have video or sound recordings and are dealing with a breakdown in your family (involving children too) it is important to see a family law solicitor. Please ensure this issue is discussed with them early on so they can advise you if and how this information should be used in your case.