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

Estimated reading time: 3 minutes

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 secret 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 secret recordings are 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 secret recordings 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 on secret recordings?

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. If you're going through a challenging time with your partner in relation to your children, contact us before you make any decisions and we can talk you through your options.

Author bio

Steph Espinosa is a family law solicitor at Family Law in the City, where she has been part of the team since the firm's founding. She qualified in 2021 having trained at Winkworth Sherwood LLP and advises clients on divorce and separation, financial remedy proceedings, children arrangements, and pre- and post-nuptial agreements. For a confidential conversation, visit our contact page or call the office on 020 4579 5360.

Frequently asked questions about secret recordings

Is it legal to secretly record my ex-partner or my children?

In England and Wales, it is generally lawful to record a conversation if you are a participant in it — sometimes referred to as one-party consent. However, that does not mean recording is without risk. Using, sharing or relying on a recording raises issues under data protection and privacy law, and in some circumstances could amount to harassment. Covertly recording children is a different matter: the Family Justice Council's 2025 guidance is clear that this is rarely appropriate, and is likely to breach a child's right to privacy under Article 8 of the Human Rights Act. Before making or using any recording, it is important to get legal advice.

Will the court accept a secret recording as evidence?

It may do, but not automatically. The family court retains full discretion over admissibility and will weigh the recording's evidential value against the potential harm caused by admitting it. Judges will consider how and when it was made, whether the full recording has been disclosed, whether it has been edited, and whether it genuinely helps determine the relevant facts. Covert recordings are technically hearsay evidence, so an application for permission to rely on them is usually required. Crucially, a recording that is admitted may still carry limited weight — or may damage your case rather than help it.

Could making secret recordings actually harm my case?

Yes, it can. Courts have taken a dim view of covert recordings in a number of cases, particularly where children are involved. Recording a child — including placing a device in their clothing or belongings — has been described by judges as disturbing and damaging to the child. Such behaviour may reflect negatively on a parent's ability to put the child's welfare first, which is the court's paramount concern. There is also a risk of satellite litigation around the recordings themselves, which can increase costs and delay resolution.

What should I do if I have already made recordings?

Handle them carefully and take legal advice before doing anything else. If you have made recordings you believe are relevant to your case, your solicitor can advise whether they are likely to help or harm your position before any disclosure is made. Courts expect honesty and transparency, and late or selective disclosure can undermine your credibility. If recordings have been made of you without your knowledge, your solicitor can advise on how to challenge their admissibility.