Covert recordings in children cases: What parents should know

In May 2025, the Family Justice Council published its new guidance  "Covert Recordings in Family Law Proceedings Involving Children".

Developments with technology over recent years mean that there are new and easier ways of making covert recordings than ever before. The guidance comes in the light of the Family Courts seeing an increased number of cases where a parent wishes to rely on a recording that they have obtained covertly. 

What is a covert recording?

The Family Justice Council (FJC) guidance gives a useful definition:

If you have made a recording without the knowledge or permission of someone, whether they are a professional, an adult, or a child, then this may be described in Court as a covert – or secret – recording. This can refer to both video and audio recordings.

What does the Family Justice Council guidance say?

The FJC guidance is clear: covert recordings should be approached with caution. While some parents may feel compelled to record interactions to support their case, the guidance warns that such actions can be harmful, intrusive, and counterproductive.

There are a number of different reasons why recordings might be made and the guidance looks at these in different contexts: professionals, the other parent and children.

However, one common theme is lack of trust – whether that in the person who is being recorded or a wider lack of trust in the Family Court process to make the right decision without what’s seen as ‘first hand’ evidence of the behaviour that’s being considered as part of the case.

Given the emotive nature of family court proceedings, it's easy to see why a parent may feel strongly about the need to make a recording. However, the guidance highlights several risks around covert recordings:

• Emotional harm to children who feel betrayed or confused
• Breakdown of trust between parents and professionals
• Legal complications around data protection and privacy.

The guidance also makes clear that it's contempt of court and/or a criminal offence to record court proceedings, including remote court hearings. 

What does the court have to consider when presented with a covert recording?

It's important to be aware that even if a recording is made, it's not automatic that it will form part of the court proceedings. This is an issue which has to be determined by the Family Court, taking into account the welfare of any child, the right to privacy and the rules of evidence.

The rules of evidence are potentially quite complex, and the detail falls beyond the scope of this article. However, as an overview, the court has to consider the specific legal provisions under which a recording would be considered ‘admissible’ i.e. allowed into evidence.

Even if a recording is deemed admissible, the court must still decide whether it should be relied upon. This involves assessing whether it is relevant, necessary, and proportionate in the context of the child’s welfare and the overall fairness of the proceedings.

Overall, there has to be a clear connection between what the recording shows and what information is needed to determine the issues or evidence in the case. 

There are practical considerations that apply too - how is the recording going to be provided? It might be that a transcription of the recording is to be provided, along with access for all parties and the judge to the audio recording. 

It's important for the court to be assured that any recording is unedited and has not been changed. Any editing or omission can undermine the credibility of the evidence and may lead to adverse findings against the person who made the recording. 

Consideration also has to be given to the circumstances in which the recording was made. Recent cases in the Family Courts have given examples of where the credibility of a recording has been undermined because only part of the recording was provided to the court; and the wider context before / after the recording affected the perception of the recording that was presented to the court.

The Family Courts have to be particularly careful about the risk that the person making the recording could have influenced or manipulated what was said in the recording.

What should you do instead?

If you’re involved in a family law dispute and believe that you need to make a recording to support your case, consider these steps first:

• Speak to your solicitor: they can advise on whether a recording is appropriate or necessary. If you do not have a solicitor, there is a specific section of the Family Justice Council guidance which is aimed at litigants in person (Appendix 4)
• Raise concerns through proper channels: complaints about professionals should be made formally, not through secret recordings
• Focus on the child’s needs: ask yourself whether your actions support their wellbeing.

Family proceedings are often emotionally charged and complex. While it’s natural to want to protect your child and ensure your concerns are heard, covert recordings can carry significant risks. If you’re unsure about your options, our team at Mills & Reeve is here to guide you.