Covert Recordings in Family Law: Eavesdropping on Justice
This article follows on from our recent training session on covert recordings in family law, kindly hosted by Amy Stout and Anushka Kangesu of 3DJB. Their insightful session highlighted the increasing importance of understanding how secret recordings are being used in family proceedings. It also explored the significant risks they pose for parties involved.
In this piece, trainee solicitor Rian Shah explores the legal framework, case law, and practical issues surrounding covert recordings in family law. He offers guidance on when such evidence may help and when it is more likely to harm a case.
The rise of covert recordings in family law
Mr Justice Peter Jackson (as he then was) aptly described the challenge facing both professionals and the family courts: covert recordings in family law. He noted in the case of M v F (Covert Recording of Children) [2016] that “advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday's spies.”
With the rapid growth of technology, the issue of covert recordings in family law cases has become increasingly common. Courts and legal professionals must now carefully navigate the complex legal, ethical and evidential questions that such recordings present.
What is a covert recording?
A covert recording is an audio or video recording made without the knowledge or consent of the person being recorded. Within the context of family law, Sir James Munby in Re B (A Child) [2017] identified three categories:
- Covert recordings of children
- Covert recordings of family members
- Covert recordings of professionals
Each category raises distinct concerns for the courts.
Covert recordings of children
Guidance from the Family Justice Council (May 2025) suggests that covertly recording children rarely strengthens a parent’s case. Instead, it is often seen as evidence that a parent cannot meet their child’s emotional needs or protect them from harm.
In M v F (Covert Recording of Children) [2016], a father sewed recording devices into his daughter’s clothing. He wanted to capture conversations with her mother and professionals. The court strongly condemned his actions. It found that this behaviour damaged parental relations and risked harming his relationship with his daughter.
In short, covert recordings of children in family law proceedings are usually more damaging to the recorder than helpful.
Covert recordings of family members
Recordings of family members can sometimes provide evidence of their behaviour. However, excessive or intrusive recordings may be treated as harassment or abuse. The court may also consider such behaviour, on both sides, as part of the welfare assessment in child arrangements.
Covert recordings of professionals
Covert recordings of professionals, such as social workers, has become more common. In some cases, these recordings have evidential value, particularly when they reveal flaws in expert evidence. For example, Re F (Care Proceedings: Failures of Expert) [2016] and Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] both highlighted how covert recordings of professionals could undermine unreliable expert opinions.
Private bodies versus public bodies
When it comes to covert recordings in family law, there is a distinction between public and private bodies. Public bodies face significant restrictions. This is because any recording must be balanced against the right to privacy under Article 8 of the European Convention on Human Rights. By contrast, private individuals often have greater freedom, though their actions may still be scrutinised by the court.
The risks of relying on covert recordings in court
While many parties believe covert recordings will strengthen their case. However, this is not always true. In Singh v Singh & Ors [2016], the court warned that covertly obtained recordings may be manipulated or taken out of context. A person who knows they are being recorded may also deliberately provoke or mislead the other party.
Furthermore, courts sometimes condemn the very act of recording. The earlier example of a parent sewing devices into a child’s clothing shows how such behaviour can damage the recorder’s credibility rather than assist their case.
When are covert recordings admissible in family law proceedings?
Covert recordings cannot automatically be used in court. A party must first apply for permission by making an application served on the other parties. The application needs to set out as much information as possible about the recording. This includes how and why it came to be recorded, and why the other person was not told. Courts advise that such applications be made as early as possible to avoid delays. In Children (Private Law: Covert Recordings: Adjournment of Final Hearing) [2021], proceedings were delayed by six months due to the late submission of over 100 recordings.
The parties in the case will have the opportunity to reply to the application, and they may oppose this.
The Judge will then decide as to whether the recording/s are admissible as evidence or not.
What should you do if you have a covert recording?
If you are involved in family proceedings and have a covert recording, it is crucial to seek legal advice before taking action. Covert recordings in family law can carry significant risks and may not always be admissible.
At Crane & Staples, our experienced family law team can advise you on the use of covert recordings and guide you through the complexities of your case. Please call us on 01707 329333 or email law@crane-staples.co.uk to arrange an appointment. Alternatively, please complete our contact form here.
Further Reading:
For information on covert recordings in employment matters, please read our related article: Can employees record disciplinary meetings?