“Caught on Tape?” – New family court guidance warns against covert recordings in children cases

In an age where nearly everyone carries a recording device in their pocket, the temptation to secretly hit “record” during a difficult conversation is real, especially in emotionally charged family disputes. But in the sensitive context of family law, especially where children are involved, a new message from the Family Justice Council (FJC) makes one thing very clear: just because you can record someone, it doesn’t mean you should.

The FJC has published long-awaited guidance on covert recordings (those made without the other person’s knowledge) in family proceedings concerning children. These recordings have been turning up more and more in court, but until now, there hasn’t been a consistent approach to how they’re handled. That’s changing.

Secret recordings: a growing problem

More parents have been submitting secret recordings as part of their evidence, conversations with former partners, recordings of handovers, or even their children being questioned about time with the other parent. Often, the motivation is understandable: they believe the truth needs to come out. But the new guidance warns that these recordings can do more harm than good, particularly when children are involved.

According to the FJC, covertly recording a child is “rarely likely to promote the child’s welfare”. Not only can it breach their privacy, but it may also distort the parent-child relationship or cause emotional harm, all of which will be taken seriously by the court.

Courts now have a clearer path

The guidance outlines a new step-by-step process for judges to follow if a covert recording is submitted as evidence. It includes:

• Identifying the recording early on.

• Reviewing whether it’s been edited or taken out of context.

• Deciding how relevant it actually is to the issues in the case.

• Weighing up the potential impact on the child.

• Considering if it’s fair to include at all.

Judges are also encouraged to hold a separate hearing (if needed) to decide whether the recording should even be used. Last-minute “surprise” recordings are discouraged and may not be allowed.

Hearsay, fairness and the bigger picture

Most covert recordings fall under hearsay evidence, which can still be admitted in family proceedings under specific rules, but the court will always weigh the reliability and fairness of using such evidence, especially when the subject of the recording is a child or a professional, like a social worker or guardian. If a party wants to rely on such recordings, proper notice must be given and ideally, a transcript provided too.

There are wider concerns, too. Secret recordings may breach data protection laws, especially if professionals (like social workers) or children are involved. In some cases, there’s even the risk of criminal liability.

Time for a culture shift?

The FJC is urging a move away from covert behaviour. Instead, they’re encouraging open and transparent communication, with overt recordings made only when everyone involved is aware. They’ve also called on professional bodies to introduce clearer policies about when recording is acceptable, to avoid the kind of mistrust that leads to secrecy in the first place.