Covert recordings in cases involving children

In May 2025 the Family Justice Council released new guidance to assist practitioners with the issue of covert recordings in proceedings concerning children. It follows the draft guidance from December 2022. As acknowledged by the President in the foreword, “this has been a growing area for the courts to consider, with little guidance available to judges or other professionals”, and the FJC provides some much-needed clarification of this previously grey area of law. It is a must-read for all children practitioners.

The issue of covert recordings

Covert recordings are defined in the Guidance as “recordings made without the express knowledge and permission of the people being recorded, whether by video or audio”.

Covert recordings are an increasingly prevalent issue. There is no escaping technology in today’s society. It is now easier than ever to audio record or video record someone, whether that be through a mobile device, camera or specifically designed spyware devices. As Mr Justice Peter Jackson (as he then was) remarked in the case of M v F (Covert recording of children) [2016] EWFC 29, “Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies.” Taking covert recordings of the other parent has become commonplace for many parties engaged in children proceedings. This is especially true in respect of cases involving allegations of domestic abuse.

The guidance explores the various reasons why recordings may be taken. Covert recordings can strategically be used to “evidence gather” to support an application to limit the other parent’s time with a child. Children practitioners will likely be familiar with receiving lengthy recordings from a client documenting alleged parental neglect or alleged abusive behaviour in an attempt to strengthen their application. For those parents who are subjected to domestic abuse, securing a covert recording may appear to be a crucial lifeline. Recordings can assist with proving their version of events and to show the court the dark realities of their ex-partner’s behaviour towards them behind closed doors. Recordings can also be of great assistance to the court at fact-finding hearings.

On the other hand, covert recordings innately bring a plethora of practical and evidential issues. The following questions are often raised:

• Why was the recording taken covertly?
• How was the recording taken?
• Who else was aware that the recording was being taken?
• Has the recording been manipulated?
• What was the context to the recording?
• Are there multiple ways to interpret the recording?
• Is the recording representative of that parent’s behaviour as a whole?

Recordings should not always be taken at face value. The context to an incident cannot always be captured in the recording. For example, it could be that the recording party has deliberately provoked the other parent shortly before the “start recording” button was pressed. The party undertaking the recording can stage a situation purely for the strategic benefit of gathering evidence for proceedings and the court needs to be live to this issue.

Taking repetitive videos and recordings of someone can also in itself be a form of abusive and controlling behaviour, as was the case in HKS v HSM [2021] EWHC 3423. It is not surprising that many parents take issue with being recorded without their consent within their home. As such, seeking to rely on such recordings within children proceedings can often backfire as a strategy. The guidance states:

“Parents may perceive a covert recording as the only way to illustrate their experience of the behaviour of which they complain. However, in some cases the recording is a form of surveillance that in itself can be an example of distorted and obsessive thinking that can constitute a form of harassment, or be controlling or abusive.”

As such, clarity as to the reason why the recording was taken should always be obtained and set out to the court. The guidance also makes clear that secret recordings of children are rarely going to assist a case.

Practitioners should also keep in mind that covert recordings may engage issues with GDPR under the Data Protection Act 2018 and Article 8 privacy rights under the Human Rights Act 1998.

Key points highlighted by the guidance

It is a case management decision as to whether a covert recording should be admitted within proceedings. Costly satellite litigation should be avoided. Any issues relating to the admissibility of covert recordings should be raised at the earliest possible opportunity. Part 4.20 of the Guidance explains that:

“Late production risks derailing the timetable of the case, extending an existing trial listing, risking a last-minute adjournment, or taking the court and other parties by surprise, and is unlikely to be looked on favorably by the court, particularly where the recordings have been in the possession of a party for some time.”

The court will need to consider the necessity and proportionality of any court recordings before they are admitted as evidence. The scope of the recordings should also be considered as there may be more than one, and not all will be relevant. The guidance notes that “almost all” such recordings will be considered hearsay evidence.

The case management directions that should be considered by the court when dealing with covert recordings are set out at 4.3 of the guidance and include the following:

• 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 have been the subject of covert recordings.
• Consideration of costs arising from the application.
• Any further hearing to determine the issue of admissibility.

The cost consequences of pursuing the admission of covert recordings as evidence must be considered, especially as transcription costs can be expensive. Cost orders could be ordered if one party inappropriately pursues the admission of covert recordings.

The court must consider the extent to which the nature of the recordings is relevant to the overall welfare analysis.

If the parties dispute the authenticity of a recording, a third-party expert may need to be instructed, following a consideration of necessity and proportionality. Compliance with Practice Direction 25 is required.

Section 5 of the guidance makes clear that particular consideration will need to be given to covert recordings taken of children. The court will need to consider if the appointment of a guardian is necessary. The position is summarised in Appendix 4:

“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 likely consider the impact of the recording on the child, whether the child needs to be told about the recording and whether they should give evidence about what was recorded.”

The guidance emphasises the need for further guidance on covert recordings across relevant professional bodies and organisations.

Litigants in person should be directed to Appendix 4 of the guidance to assist them with a general understanding of how covert recordings are dealt with by the courts.

Moving forward

It can be difficult for many separated parents to move forward positively following children proceedings and this is especially true in cases involving covert recordings, as their mere existence is a strong indicator of the lack of trust between the parties. Of course, there are many cases where the concept of rebuilding trust between parents post-proceedings is understandably difficult if not impossible. This is true in cases involving findings of domestic abuse or child abuse, such as child sexual abuse. However, putting those cases aside, it will usually be in the child’s best interests for there to be mutual trust and respect between parents post-separation. As such, parties should be encouraged to explore non-court dispute resolution options such as mediation or child inclusive mediation wherever possible. That said, there are of course many children cases where litigation is both necessary and proportionate to secure a child’s welfare. Therapeutic support should also be considered as this can assist parents with re-building trust.

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