“Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies.”
– Peter Jackson J, M v F (Covert Recording of Children) [2016] EWFC 29
It is now commonplace for parties in family proceedings to present audio or video recordings made without the knowledge of the other party. Whether it’s a parent secretly recording handovers, a child being filmed during conversations, or professionals like Cafcass officers being recorded during meetings — covert recordings have become a regular, often contentious, feature of family litigation.
The Family Justice Council (FJC) has issued guidance to provide a structured approach for how such recordings should be treated by the court. It is clear: the question is no longer whether these recordings can be made — but whether they should be relied upon.
What Counts as a Covert Recording?
A covert recording is any audio or video captured without the subject’s express knowledge or consent. In family law, these are often presented in an attempt to undermine the other party or strengthen a particular allegation. However, they carry legal, evidential, and welfare-related consequences — and can easily misfire.
How Do the Family Courts in Kent Treat Covert Recordings?
Before a covert recording is even considered as evidence, the court must engage in robust case management. The guidance makes clear that issues must be identified early. Case directions should cover:
- How and when the recordings are to be disclosed.
- Whether a transcript is required.
- The authenticity of the recordings and whether they have been edited.
- The recordings’ relevance to the issues in dispute.
- The potential emotional or psychological impact on a recorded child.
- The cost and proportionality of admitting such evidence.
- Whether a hearing is needed to deal with admissibility in full.
Legal Framework on Admissibility
Covert recordings will usually amount to hearsay. Under the Children (Admissibility of Hearsay Evidence) Order 1993, such evidence is generally admissible in children cases if it is connected to a child’s welfare, upbringing, or maintenance. If it falls within this remit, it bypasses the restrictions otherwise found in the Civil Evidence Act 1995.
That said, courts must still assess weight. As Lady Justice Butler-Sloss warned in R v B County Council ex p P [1991] 1 FLR 470: hearsay evidence demands anxious scrutiny.
If the covert recording falls outside the 1993 Order, the Family Procedure Rules 2010 require an application under rule 23, supported by a C2 form and details covering:
- What was recorded and in what context.
- Whether the material is edited.
- Why the recording was made covertly.
- Its relevance to the issues in dispute.
Relevance: The Threshold Test
The threshold remains the test of relevance. In DPP v Kilbourne [1973] 1 All ER 440, Lord Simon held that evidence is relevant if it is “logically probative or disprobative of some matter which requires proof.” This means a recording must directly address the issues at hand — not simply be interesting or dramatic.
Even where the contents have little evidential value, the very act of recording may itself become relevant. In Re C (A Child) [2015] EWCA Civ 1096, the court recognised that repeated recording of a child, without consent or justification, may itself amount to emotional abuse.
When the Child Is Recorded
If a child has been recorded, the welfare implications go beyond admissibility. The court may have to consider:
- Appointing a Children’s Guardian.
- Informing the child they were recorded.
- Whether the child should give evidence to assess the context and impact.
- Emotional consequences for the child and any wider damage to familial relationships.
Risk, Cost and Strategic Fallout
Parties who think they’ve secured a “smoking gun” may discover the barrel pointed the wrong way. Covert recordings can lead to:
- Criticism from the court.
- Costs orders or findings of poor conduct.
- Harassment or privacy litigation.
- Injunctions or contempt proceedings.
Some parents go as far as attempting to interview a child in the hope of obtaining allegations of abuse. This is rarely effective. The guidance reiterates that such interviews should be conducted professionally. If they are not, the court is likely to give them no weight at all.
Practical Advice for Solicitors and Family Law Teams
If you intend to rely on a covert recording in family proceedings:
- Raise it at the earliest opportunity.
- Provide proper disclosure — both the original file and a transcript.
- Be prepared to explain how it was obtained and why.
- Understand that the court will scrutinise your conduct, not just the content.
Appendix 1 of the FJC guidance sets out a clear summary of the key points and is worth reviewing in full.
For assistance in this area of law, contact clerks@anvilchambers.co.uk