With high-quality recording devices now built into almost every smartphone, it’s hardly surprising that parties in family proceedings are increasingly tempted to press “record” in secret. As Peter Jackson J aptly observed in M v F (Covert Recordings of Children) [2016] EWFC 29 at [1]: “Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies.”
These recordings might involve children, former partners, or professionals, such as social workers, and are often made without their knowledge or consent. Whilst their evidential potential may appear compelling, the courts have long treated them with a healthy degree of caution.
The Family Justice Council (FJC) has now issued formal guidance on the matter which aims to clarify how they should be approached and assessed, both by courts and professionals. The President of the Family Division and Chair of the Family Justice Council, Sir Andrew McFarlane, says in his forward to the guidance:
“…Whilst some covert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children and professionals, causing harm and often leading to concerns about the accuracy of the recording…”
Admissibility of Covert Recordings
The guidance is clear that almost all covert recordings will fall within the definition of hearsay evidence and, as emphasised in Re W (Minors) (Wardship: Evidence) [1990] 1 FCR 286, Lord Justice Neill observed that:
“Hearsay evidence is admissible as a matter of law, but… this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.”
Despite this, as demonstrated in Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66, the guidance asserts that there will be some fact-specific instances where covert recordings will be valuable to issues in dispute.
However, before the court considers admitting a covert recording into evidence, it will first determine whether the material is relevant. The criteria for relevancy was set out in DPP v Kilbourne [1973] 1 All ER 440 by Lord Simon of Glaisdale at [460], who states “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.”
If deemed relevant, the court should only proceed to examine the material in full if it is genuinely probative of an issue that requires determination. Otherwise, the time, cost, and potential intrusion involved in examining the recording may not be justified. In the context of family proceedings, a recording may be relevant and probative if, for example, it speaks to a child’s welfare or highlights safeguarding concerns, providing wider context to a specific allegation.
In examining its probative value, the court will also consider the authenticity and completeness of any covert recording. The FJC guidance highlights the particular risks posed in the digital age, where recordings can be selectively edited, manipulated, or taken out of context. In some cases, if the authenticity of completeness of the recording is brought into question, it may even be necessary for a transcript to be produced or to instruct a forensic expert to determine whether the material has been manipulated, which carry potentially significant costs.
Transparency and Timing
These evidential considerations feed directly into the guidance’s broader emphasis on transparency. The guidance stresses the importance that a party seeking to rely on covert recording should do so at the earliest possible opportunity and provide full information about what was recorded, how, and why, and confirm whether the material has been altered in any way. Courts will look unfavourably on last-minute disclosures which risk delaying proceedings or prejudicing the other party’s ability to respond, particularly where the recording has been in the party’s possession for some time.
Even where the recording is admitted, it is not without risk. Increasingly, the court will not only take into account the contents of the recording but will also scrutinise why the recording was made, by who, and under what conditions.
Recordings of Children
Where children are involved, courts are particularly cautious. The risk is not only that the child’s words may have been solicited or influenced, but that the act of recording itself may compromise a child’s emotional wellbeing. This concern was central to the decision in M v F (Covert Recordings of Children) [2016] EWFC 29, where Peter Jackson J described at [1] the practice of covertly recording children as “almost always wrong”, adding at [5] that the father’s conduct risked placing the child at risk of harm.
The same caution underpinned the Court of Appeal’s decision in C (A Child) [2015] EWCA Civ 1096, where the father’s persistent recording and photographing of his daughter was described as emotionally abusive. At [23], the court found:
“He is quite unable to understand that his frequent recording and photographing of [the child] is emotionally abusive of her. As [the child] grows up, what is she to make of it? She will know, if she does not already, that [the father] is looking all the time for the means to criticise [the mother].”
If a child is recorded in secret by a parent, the guidance is clear that some consideration will have to be given to informing the child at an appropriate time. In the preparation of their guidance the FJC consulted the Family Justice Young People’s Board. They note that children, although sometimes viewing covert recordings as a way of being heard, described feeling discomfort and betrayal, seeing such recordings as a breach of trust.
Recordings of Parents
In Re C, covertly recording was not only regarded as inappropriate parenting but also a form of abuse against the mother, contributing to the making of a Non-Molestation Order. At [59], the court concluded:
“The use of recording equipment in the context of the case overall amounts to a form of intimidation and is abusive and is therefore capable of being the subject of an injunction.”
This same reasoning was reflected in the M v F ibid, where Peter Jackson J, warned at [5] that such actions were likely to “further damage the relationship between the parties”, offering a broader caution at [7]:
“The covert recording of adults normally says more about the recorder than the recorded.”
In HKS v HSM [2021] EWHC 3424 (Fam), the father’s repeated covert recordings of the mother were deemed not just inappropriate but an invasion of privacy that was “highly relevant to the welfare determination.”
Taken together with earlier authorities, the decision in HKS v HSM reinforces the courts’ growing concern with the conduct surrounding, and unintended effects of, such recordings on those involved. The act of secretly recording another party or a child, can itself become a matter of significant forensic interest. The guidance notes that, in some rare cases, consistent covert recordings could amount to a course of conduct which could engage the offences of harassment, stalking, or coercive and controlling behaviour.
Recording of Professionals
While the focus of covert recording is often on children or former partners, a growing number of cases involve recordings of professionals such as social workers or CAFCASS officers. These recordings are often undertaken by parties in an attempt to challenge a professional’s account or expose perceived bias. In Re B (A Child) [2017] EWCA Civ 1579 at [12], Sir James Munby acknowledged that:
“there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.”
However, the guidance warns that recording professionals in secret, even when well-intentioned, can reflect a lack of trust in professionals and could cause a breakdown in communication. Instead, parties are encouraged to seek permission from the professional before recording and to be aware of the relevant policies of their professional bodies. However, the guidance notes that not all professional bodies or agencies have developed entirely clear or accessible policies around covert recordings and urges them to do so to reduce the perceived need for such recordings.
Conclusion
While the guidance accepts that covert recordings may, in some cases, shed light on disputed issues, it also makes it clear that they are rarely the “smoking gun” that a party hopes for. Their evidential value can be unpredictable, and the surrounding circumstances may prove more significant than the content itself: how the recording was obtained, who was recorded, and why? What begins as an attempt to strengthen a case can, in the wrong context, backfire.
It is important, therefore, to take specialist legal advice before pressing “record”, or considering whether to seek to admit any covert recordings into evidence, at the earliest possible opportunity.
Author: Matthew Ratcliff
Matthew Ratcliff can be instructed by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
The FJC’s guidance in full can be found here:
and
DPP v Kilbourne [1973] 1 All ER 440
Re W (Minors) (Wardship: Evidence) [1990] 1 FCR 286,
C (A Child) [2015] EWCA Civ 1096
Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66
M v F (Covert Recordings of Children) [2016] EWFC 29