Spies and private investigators are no longer needed to record another person covertly; anyone with a mobile device can press "record" without another person even knowing.
In the context of Family proceedings, covert recordings of ex-partners, children and professionals are frequently the subject of applications made by parties who wish to rely on them in support of their case. In England and Wales, it is necessary to obtain permission from the court to adduce covert recordings as evidence, but permission may be granted if the recording is of probative value, reliable and relevant.
However, while it may appear that covert recordings would provide clear and cogent evidence, given that they seemingly capture the ‘reality’ of the situation on the ground, they are in fact treated with caution and viewed with suspicion by judges. For example, a judge will be cautious when assessing the content of a covert recording because of the risk that where one party knows a conversation is being recorded but the other does not, the content may be manipulated. There is also the risk that the judge will consider that the act of recording another person covertly is as an attempt to control and/or intimidate (regardless of whether the recording, on the face of it, proves their point).
Specialist advice should therefore be taken at the earliest opportunity, and consideration will need to be given to the following:
You cannot cherry-pick
The recording should be demonstrably of the whole conversation, not just a snippet. It is important for the court to know that something someone has said or done has not been taken out of context. If the recording is found to be part of a longer recording, the court could order the full version to be produced. If the full version contains unhelpful content, it could end up having unintended adverse consequences for the party wishing to rely on the recording in the first place.
You run the risk of all covert recordings being disclosed
If one party applies for a recording to be adduced as evidence, they may be required to disclose all other recordings in their possession. Careful thought will need to be given, therefore, to this risk before seeking to rely on a recording.
Additionally, if one party’s recordings are adduced into evidence, the court may require the other party to produce all recordings in their possession (even if that party has not made an application to adduce this as evidence). The party wishing to rely on a covert recording must therefore consider whether unhelpful material could come to light if they sought to rely on their own recording.
Recordings of children are likely to be frowned upon
Many parents believe that recording their children would be beneficial to their case. In fact, the opposite is often true. Judges have made clear that parents should think very carefully about the consequences of making a recording of their child and there are many cases in which recordings made of children have backfired on the parent making the recording.
In the case of M v F (covert recording of children)  EWFC 29, a father sewed recording devices into the lining of his child’s clothing to find out what was being said in meetings between the child and a social worker. The judge stated that “it is almost always likely to be wrong for a recording device to be placed on a child…this should hardly need saying…such activities normally say more about the recorder that the recorded”. Ultimately, the judge in that case made an order in terms that the child should live with the mother, rather than the father, and for the father to pay the mother’s legal costs incurred in relation to dealing with the covert recordings.
Recordings of adults are also likely to be frowned upon
Although to a lesser degree, the court also takes a dim view of a party who has secretly recorded another adult. In the case of C (A Child)  EWCA Civ 1096, a father secretly recorded the mother during handovers and via CCTV footage. The judge considered that to amount to “a form of intimidation” and granted the mother a non-molestation order against the father. It would be prudent to seek the other person’s approval of being recorded or take a contemporaneous note and apply for that to be adduced as evidence.
It will cost you
If a covert recording is admitted into evidence, it is likely that the court will want a professional transcript, the cost of which would typically be borne by the party seeking to rely on it. Depending on the length and / or volume of the recording(s), this cost could be significant. There will also be the costs of the applicant’s legal team for carefully reviewing the recordings and transcripts, in addition to the costs of the application, and potentially the other party’s legal costs if their application is unsuccessful and a costs order is made against them.
The possibility of significant delay
The case of Re Children (Private Law: Covert Recordings: Adjournment of Final Hearing)  EWFC B82has highlighted the considerable risk that the court orders an adjournment in the proceedings to allow for covert recordings to be properly considered, which could result in significant delay and additional cost. In that case, the mother was found to have over 100 recordings of the father on her phone, and the judge ordered a six-month adjournment to allow the parties’ respective legal teams to consider them.
Guidance for the future
As we have seen, seeking to rely on covert recordings in the context of Family proceedings in England and Wales involves a myriad of issues and can have significant adverse consequences. It is important, therefore, to take specialist legal advice at the earliest opportunity and think very carefully about the potential consequences. This is a complex area which is becoming increasingly prevalent due to the advances in the technology available to us all today.
The Family Justice Council (FJC) has consequently produced useful draft guidance on the legality and admissibility of covert recordings in this jurisdiction. It sets out important case management considerations, and it includes useful precedents, such as letters of consent. The guidance also warns professionals who are offered covert recordings in the context of family proceedings that admissibility is a case management decision, and they should not listen to, or view, the recordings until the court has determined whether or not to admit the material in evidence.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2023