Spy games in the Family Court: The rise of covert recordings

Covert recordings have become an increasingly common (and contentious) feature of family litigation. With smartphones now acting as sophisticated recording devices, the Family Court and lawyers alike are grappling with the evidential, ethical and safeguarding consequences of secret audio and video material.

As Jackson J observed in 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.”

The Family Justice Council’s Guidance on Covert Recordings in Family Law proceedings concerning children published in May 2025 (FJC Guidance) provides long awaited clarity on how such recordings should be treated. Yet the surge in their use raises difficult questions – not only about admissibility, relevance and authenticity, but also about welfare, proportionality and fairness.

This article focuses on the issues that arise when children are covertly recorded.

What is a “covert recording” – and is it legal?

A covert recording is any audio or video recording made without the knowledge or consent of the person being recorded. With modern smartphones and miniature devices now cheap and widely available, it has become increasingly easy for parties to record conversations discreetly. The Family Court is seeing a growing number of such recordings tendered as evidence.

The risks of this trend were identified early. In Re B (A Child) [2017] EWCA Civ 1579, Sir James Munby P warned that covert recording in family cases raises “a myriad of issues… very few of which… have… been systematically considered”, underscoring the need for clear guidance and careful judicial scrutiny.

While public bodies are constrained by the Regulation of Investigatory Powers Act 2000, which permits covert recording only when lawful, necessary and proportionate, no equivalent statutory framework governs private individuals. The FJC Guidance notes the persistent confusion about the lawfulness of covert recording by parents.

For private individuals in England and Wales, making a covert recording is generally lawful if the recorder is a participant in the conversation (the “one party consent” principle). However:

• Distribution or sharing of the recording may breach privacy or UK GDPR.
• The domestic purposes exemption under UK GDPR does not apply when recordings are used in proceedings or shared with professionals, meaning processing requires a lawful basis and individuals risk committing offences under the Data Protection Act 1998.
• Covertly recording children is, in the opinion of the Information Commissioner’s Office, likely to breach their privacy rights even if the recording is admitted as evidence in legal proceedings.

Covert recording can amount to harassment, stalking, or even coercive and controlling behaviour. In particular, taking repetitive videos and recordings of someone has been found to be itself a form of abusive and controlling behaviour. In HKS v HSM [2021] EWHC 3423, the amount of covert recording was, by any account, remarkable. In all there were 681 hours of covert audio recordings of the mother. The High Court considered this to be a “substantial invasion” of the mother’s privacy, causing her anxiety and distress and was highly relevant to the welfare determination.

Parents often misunderstand the legalities and underestimate the potential consequences.

Why (and how) parents record children

Covertly recording children is one of the most serious and problematic behaviours the Family Court encounters. Family lawyers see parents covertly recording children in an attempt to “prove” abuse, neglect or inappropriate behaviour. Common methods include:

• Placing recording devices inside a child’s clothing or school bag.
• Hiding devices in bedrooms or soft toys.
• Recording contact sessions or handovers.
• Recording video or phone calls without the child’s knowledge.

The FJC Guidance and case law are unequivocal: secretly recording a child is almost always harmful, rarely probative, and frequently damaging to the recorder’s case.

Parents who covertly record their children usually do so in the belief that the recording will provide decisive evidence, eg, to support an application to limit the other parent’s time with a child. Children lawyers will likely be familiar with receiving lengthy recordings from a parent:

• Capturing “the truth” at home or at handovers.
• Evidencing neglect, manipulation or abuse
• Countering perceived professional bias.
• Giving them “irrefutable” proof.

These motivations usually reflect fear, mistrust or frustration.

The welfare impact

At all times, the Family Court is charged with the welfare of the child, and the conduct of individuals who covertly record a child is a relevant consideration when making those welfare-based decisions.

Judges have consistently emphasised that placing recording devices on, near, or around a child is deeply inappropriate. As Jackson J described it in M v F (Covert Recording of Children) – a case where a father had sewn a recording device into his child’s clothing – “it is almost always likely to be wrong”. The FJC Guidance says:

“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 covert recording of children rarely promotes a child’s welfare whatever the intention. Crucially, the act of recording usually tells the court far more about the parent than the child. Covert recordings invariably:

• Breach a child’s privacy and trust.
• Cause confusion, distress or a sense of betrayal.
• Expose the child to emotional harm.
• Damage relationships, making the child feel caught in the middle of an adult conflict.

In M v F (Covert Recording of Children), the recordings, while admitted into evidence, provided no useful evidence. But the adults’ behaviour in making the recordings raised serious concerns: further damaging adult relationships, showing mistrust of professionals, creating a “secret” likely to affect the child, and harming the family’s wider stability. Jackson J put it succinctly:

“Experience suggests that such activities normally say more about the recorder than the recorded.”

Consequently, recordings are often treated as evidence of parental conduct and their (in)ability to understand and promote their child’s emotional needs and protect them from harm, not evidence about the child. Seeking to rely on such recordings within children proceedings can often backfire as a strategy. The FJC 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.”

Admissibility, case management and the satellite litigation problem

The FJC Guidance underlines that professionals must exercise extreme caution before engaging with covert recordings; they should not be viewed or listened to prematurely, and certainly not before the court has ruled on admissibility or directed how authenticity, scope and relevance are to be assessed. Lawyers must also ensure that any unedited original file is preserved (and advise their client to do the same) as the court may scrutinise its completeness and context.

Even if relevant, recordings involving children are not automatically admissible; their admissibility is entirely discretionary. But before we can even think about the recording being admitted as evidence, lawyers need to be asking themselves: 

• 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 never be taken at face value and clarity as to the reason why a recording has been made should always be obtained and set out to the court. Recordings can be easily staged, manipulated or selectively edited and the context to an incident cannot always be captured in the recording. And that doesn’t even touch on the deliberate manipulation of “innocent” recordings.  

In a 2020 case, a mother sought to persuade the court that the father was violent and dangerous by producing a manipulated audio recording which suggested the father had made threats towards the mother. The allegation was strongly refuted by the father, and it was discovered that the audio clip had been heavily doctored by the mother using online software and tutorials. The tampering was only discovered by examining the metadata of the original recording.

The Family Procedure Rules 2010 allow for covert recordings to be admissible as hearsay evidence. However, the rules also provide for the control and exclusion of evidence that would otherwise have been admissible or, conversely, for evidence to be adduced even where a party has failed to comply with procedural requirements.

Before the court admits such material, it must consider:

• Relevance – does the recording genuinely assist with the issues? Is it needed to decide the case?
• Probative value – what does the recording actually prove? How does it help?
• Authenticity – has the recording been edited or selectively captured? Was it made in collaboration with anyone else? Is it reliable? 
• Proportionality – is it proportionate to admit the recording as evidence? The longer or more numerous the recordings, the longer professionals will be spending on them.
• Context – what happened before or after the clip?
• Motive and method – why was the recording made, and how? Could the same information have been provided through witness evidence?
• Impact on the child’s welfare – was/is the child harmed by the act of recording?

Courts therefore often order early and focused case management directions which are likely to include:

• Disclosure of the full unedited recordings.
• Preparation of transcripts.
• Directions focused on clarifying the scope, metadata and authenticity of the recording.
• The need for expert evidence where authenticity is disputed.
• Costs consequences.

Determining admissibility inevitably results in satellite litigation, adding significant time and cost with no guarantee the material will be admitted or be of use. The FJC Guidance repeatedly notes that most covert recordings rarely add anything of evidential value. Cost orders can of course be made if one party inappropriately pursues the admission of covert recordings.

One particular issue that arises is the question of authenticity. The accessibility of technology to distort or modify recordings (creating “deep fakes”) means that increasingly the only way to be able to determine if a recording is authentic or not is to involve an expert. Digital forensic experts can analyse meta data and the time stamps of the recording to establish its authenticity as well as looking at account activity and IP address logs, chat histories, cloud backups or evidence from platforms confirming uploads or removals.

Additional complications for the court

Covert recordings trigger a range of wider issues for the family lawyer confronted with hours of secret surveillance.

• The potential need for the child to be separately represented in the proceedings and the appointment of a guardian to assist with the welfare evaluation.  
• Consideration of if and how the child should be told they have been the subject of a covert recording.  
• The possibility of the child giving evidence to help evaluate the weight to attach to such a recording.
• Adverse costs orders to penalise a party producing the recording to deter improper conduct, or for associated civil action where evidence has been obtained improperly or for breaches of GDPR. Even more seriously, the fact of having made such recordings may also lead to injunctive proceedings or criminal proceedings for harassment.
• Has the child’s evidence been compromised? Specifically, there are strict rules about interviewing children and a structure to enable them to “achieve best evidence” where there are concerns of criminal behaviour or abuse.
• Even where the original recording may have been lawful, its subsequent publication – or threat of publication – may present other challenges including breaches of confidentiality, privacy and GDPR, or potential defamation or harassment allegations.

Golden rules for lawyers

1. Ensure clients understand that covertly recording a child is overwhelmingly likely to damage their case, not support it (and in any event its admissibility is far from guaranteed).
2. Do not view or listen to a covert recording until the court has ruled on its admissibility.
3. Treat any covert recording with suspicion: do not assume genuineness, completeness or context.
4. Preserve the original, unedited file and ensure clients do the same.
5. Treat the handling of covert recordings as a core case-management issue and bring the issue to the court as soon as it arises.

Conclusion

The rise of covert recordings presents the Family Court with some of the most complex and sensitive evidential issues now seen in children cases. While technology has made secret recording easier than ever, its use is almost always harmful, rarely probative, and frequently corrosive to trust and welfare. Above all, welfare remains the lodestar: the covert recording of children is almost always harmful and rarely justified.

Ultimately, covert recordings tend to reveal far more about the recorder’s judgment than they do about the events captured – a point courts are increasingly alive to.

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