Law Articles

Covert Recordings in Family Law 12/06/2025

In May 2025, the Family Justice Council issued updated guidance to help address a growing issue in family law: the use of covert recordings in legal proceedings. This guidance was developed to support a more consistent approach to how such recordings are treated by courts and to provide clarity for parents, carers, and professionals—especially those without legal representation. The information in this article is based on that guidance and reflects the Council’s considered position on the matter.

Covert recordings—those made without the knowledge or permission of the person being recorded—have become increasingly common. The widespread availability of mobile phones and other devices makes it easy for individuals to record conversations or interactions in secret. However, the Family Justice Council makes it clear that while such recordings might feel helpful or necessary to those involved, they come with significant legal, ethical, and emotional implications.

The guidance explains that individuals often choose to record covertly out of fear, frustration, or a lack of trust in the system. Some may hope to uncover misconduct or feel that recording is the only way to make their voice heard. While rare cases have demonstrated that covert recordings can expose wrongdoing, the Council stresses that such outcomes are exceptions rather than the rule. Most covert recordings bring complications, create additional conflict, and can even harm the credibility of the person who made them.

Importantly, the Family Justice Council states that covert recordings are not automatically accepted by the family courts. Judges must consider several key factors before deciding whether such evidence can be admitted. These include the relevance of the recording to the issues in the case, whether it has been edited or altered, and whether admitting it serves the welfare of any child involved. Courts also consider how the recording was obtained and whether it interferes with someone’s right to privacy.

According to the Council’s guidance, anyone wishing to use a covert recording in court must raise the issue early in proceedings. A formal application may be required—typically using Form C2—and the court may ask for a full, unedited version of the recording, as well as a transcript. In some cases, a separate hearing may be held to determine whether the recording is admissible. The court will consider whether the recording adds sufficient value to justify any additional time and cost involved in assessing it.

Privacy and data protection are central concerns outlined in the May 2025 guidance. While public bodies must follow strict laws such as the General Data Protection Regulation (GDPR) and the Regulation of Investigatory Powers Act (RIPA), private individuals are not always directly governed by the same rules. However, the Council cautions that this does not remove all legal risks. Courts take a cautious approach, particularly when recordings are made in private homes or professional settings and may consider such recordings intrusive or even harassing.

The guidance pays special attention to the covert recording of children. The Family Justice Council strongly advises against this practice, highlighting that it often does more harm than good. Secretly recording a child—especially in the context of ongoing disputes—can damage their emotional wellbeing and trust in the adults around them. The courts rarely find such recordings useful and may view the decision to record a child without their knowledge as a serious misjudgement. The child's reaction, their level of awareness, and whether the recording involved any pressure or manipulation will all be considered.

When it comes to recording professionals such as social workers, the Council’s guidance is clear: seek permission. Some organisations, like Cafcass, may allow for meetings to be recorded with mutual agreement, but transparency is essential. Secretly recording professionals can damage relationships and, even if the recording is accepted, it may not significantly impact the case unless it reveals something highly relevant and trustworthy.

The May 2025 guidance also warns against sharing covert recordings outside the courtroom. Posting recordings on social media or distributing them to third parties can breach privacy laws and seriously harm a legal case. The Council highlights the confidentiality of family proceedings and explains that publishing sensitive material may be considered contempt of court or a criminal offence, depending on the circumstances.

A particularly important aspect of the guidance comes from the perspective of young people. The Family Justice Young People’s Board was consulted during the development of this guidance and expressed strong opposition to covert recordings. Many reported feelings of betrayal, anxiety, and discomfort when they discovered they had been recorded without their knowledge. The Council has taken these views seriously, reinforcing the importance of informed consent and respectful communication with children and young people involved in family proceedings.

To help reduce the perceived need for covert recordings, the Family Justice Council recommends that professionals and public agencies adopt clear, transparent policies regarding the recording of meetings and conversations. By allowing agreed recordings, providing accurate written records, and ensuring open dialogue, professionals can help foster trust and reduce the likelihood of secret recordings. Such practices should always comply with GDPR requirements and prioritise informed consent and proper data management.

The Family Justice Council’s May 2025 guidance ultimately encourages a culture of transparency and cooperation. While it acknowledges that covert recordings may sometimes be motivated by genuine concerns, it warns that such actions often introduce new problems into already complex legal cases. Anyone considering making or using a covert recording is urged to think carefully about the legal implications and emotional impact—particularly on children.

In family law, the child’s welfare must always come first. According to the Council’s latest guidance, the best outcomes arise from honesty, openness, and mutual respect—not secrecy.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation.