Can I use a covert recording as evidence in my family law children proceedings?

This is a question we often get asked as family lawyers.

With the rise in technology use, many people are seeking to rely on covert recordings in family proceedings involving children. It is now easier than ever to secretly record conversations or interactions to support a case. However, this raises both legal and ethical issues which the courts have had to grapple with without clear guidance, until recently.

In May 2025, the Family Justice Council released updated guidance on covert recordings.

What is a covert recording?

The guidance defines a covert recording as one made without the knowledge or permission of the person being recorded – whether they are a professional, an adult or a child. The recording may be audio or video.

Will the court allow a covert recording as evidence?

To be able to rely on this evidence, permission needs to be granted by the court. In determining this, the court will consider –

1. The nature of the recording including date and time it was taken.
2. The reason for the recording.
3. Its relevance – does it help the court understand something important?
4. Whether it has been edited or changed.
5. The impact on time and cost of the proceedings.

Does it matter who was a recoded – a parent, child or professional?

Recording of a child – in general, the court disapproves of covert recordings of children. The guidance states “the covert recording of children rarely promotes a child’s welfare whatever the intention”. Those who record children are often seen in a negative light by the court.

Recording by parents of each other – unless there is a very good reason to record the other parent, it is likely that these recordings will be seen by the court as an invasion of privacy. In some circumstances, the court may feel that it amounts to abuse or harassment.

Recording of professionals – it is always better to ask permission and ask to see the organisation’s policy on recordings rather than making a covert recording.

What should I do if I want to submit a covert recording as evidence?

It is important to seek legal advice at an early stage. If you wish to rely on a covert recording, you will need to make an early application to the court, setting out the relevant details so that it can be properly considered.

It is important to remember that a covert recording may not help your case. It could be viewed as an invasion of privacy or even harassment so this decision should be made carefully.

A litigants guide to covert recordings in the family court can be found here – Appendix 4 – Litgants’ guide to Covert (Secret) Recording in the Family Court

If you have any questions/concerns about covert recordings in family proceedings or need assistance, please do get in touch by calling 01603 679050 or email info@bblfamilylaw.com.

 *The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.

 

 

Written by Emerald Priscott