Use of covert recordings in children proceedings

Insight

26.02.2026

Most people now carry a mobile telephone capable of subtly recording interactions. Our homes are populated with smart devices, some of which can be programmed to do the same. The arsenal of tools available for the purposes of surveillance and the ease with which information can be gathered and stored means anyone can turn amateur sleuth if so inclined. As a result, it has become increasingly common for litigants to wish to produce covertly obtained evidence in children proceedings.

Earlier this year the Family Justice Council produced welcome guidance which has helped to clarify both the status and admissibility of covert recordings. The guidance is comprehensive and should be read in full. This column highlights key considerations when faced with this issue in practice.

Considerations before making an application

Welfare implications of recordings

The guidance notes the profound consequences for the welfare of any child subjected by a parent to the invasion of privacy and breach of trust that covert recording entails. Where a litigant applies to admit covert recording of a child, the court will consider the implications for the ability of the parties to promote and protect the welfare of the child. As stated by Mr Justice Jackson in M v F (Covert Recording of Children) [2016] EWFC 29:

'It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence.'

In addition to the direct impact of making a child the subject of covert recording or surveillance, the willingness to sacrifice the emotional welfare of the child by the use of covert surveillance as a means to attack the other parent has also been noted by the court. In the case of C (A Child) [2015] EWCA Civ 1096 the judge noted,

'[The father] is quite unable to understand that his frequent recording and photographing of [the child] is emotionally abusive of her. As [the child] grows up, what is she to make of it? She will know, if she does not already, that [the father] is looking all the time for the means to criticise [the mother].'

The views of young people canvassed for the purposes of the FJC Guidance underscored the negative and harmful impact of covert recordings on young people in the family justice system and the serious threat such recording posed to family relationships.

Recordings are also evidence of the behaviour of the person who took them

The secret nature of recordings and the associated abuse of privacy are important factors when the court is weighing the value of covertly gathered evidence. In the end, the act of recording may say more about the person recording than the person being recorded.

In certain circumstances, injunctive proceedings or even criminal sanctions can result. In the case of C (A Child), 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.

Whilst there will be rare instances where the evidence obtained is persuasive, there are many more situations where it is not, and where the making and existence of covert recordings proves highly problematic, a barrier to resolution and undermining of the trust between those involved.

The recorder could potentially also be sued by the recorded person in the civil courts and, in certain circumstances, they may be in breach of the UK's General Data Protection Regulation.

You cannot cherry-pick

Any 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.

Further, if one party applies for a recording to be adduced as evidence, they may be required to disclose all other recordings in their possession.

Increased costs

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 the application is unsuccessful and a costs order is made against applicant. The recordings might give rise to satellite litigation within the main proceedings or to a separate action altogether. Both of these would serve to increase costs.

Increased delay

The case of Re Children (Private Law: Covert Recordings: Adjournment of Final Hearing) [2021] EWFC B82 has 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.

The application

If the decision is made to try to adduce covert recordings as evidence, it is necessary to first obtain permission from the court to do so, and an application should be made at the earliest opportunity. The application should be made on notice using Form C2 and, as a minimum, should provide a summary of the following:

The nature of the recording – it's context, whether it is edited, and the date(s) and time(s).
The method of the recording and why it was obtained covertly.
The relevance of the contents to the issues in the proceedings.

In giving directions, the court will need to consider how the recordings are to be disclosed (including whether transcripts are required) and whether expert evidence is required to establish authenticity. Any expert instruction will need to comply with Part 25.

Hearsay evidence

As noted in the guidance, almost all covert recordings will be hearsay evidence. If it is 'evidence given in connection with the upbringing, maintenance or welfare of a child', it will fall within the parameters of the Children (Admissibility of Hearsay Evidence) Order 1993 and thus outside of any other rule of law relating to hearsay such as the Civil Evidence Act. This means that a party to proceedings relating to a child cannot challenge the admissibility of the evidence on the ground that it is hearsay. It is for the Court to assess whether it should be admitted and any weight that will attach to it.

Relevance

The court must be satisfied that the recording is relevant to the issues to be determined. Evidence is relevant if it is 'logically probative or disprobative of some matter which requires proof' (DPP v Kilbourne) [1973] AC 729.

If the key content of the recording is not probative of an issue in the case, then the fact of the making of the recording may still be relevant in so far as it relates to the conduct of the person who engaged in covert recording, and implications for the welfare and relationships of those recorded.

If relevance is established, the court should move on to consider probative value.

Probative value

The essential question for the court to answer is, is the evidence required to show what was said or done, or is it suggested that it is evidence that what was said is true?

A clear example of high probative value is Medway Council v A and Others (Learning Disability: Foster Placement) [2015] EWFC B66 where covertly obtained evidence showed a foster carer hurling 'an astonishingly vicious barrage of repeated words of abuse' at the mother. It was found that, without this evidence, it would have been impossible to gain a just and proper understanding of the case.

Recordings of children

Irrespective of whether the recordings can be relied on, as evidence of fact, the court must consider the degree to which the nature of the recordings is pertinent to the welfare analysis of the child.

Where the covert recordings include children the court will also need to consider additional factors such as whether the child might need to be separately represented, whether and how they should be informed they have been recorded, and whether they will be required to give evidence to evaluate the content of the recording.

Intimate images

Covert recordings that include intimate images are specifically dealt at Appendix 3 to the guidance which emphasises the need to consider the emotional and psychological harm that may be caused, particularly to an alleged victim of abuse, by the indiscriminate use of such material. The court will consider any issues as to vulnerability in relation to any of the parties and the likely impact on any such parties of the admission of such evidence and the manner in which it is used in the proceedings, whether the application/use of such images is motivated, in whole or in part, by a desire to distress or harm a party.

The guidance also notes that the circumstances in which a court will permit the inclusion in evidence of sexually explicit or intimate videos or photographs of any person are likely to be rare, in particular, in circumstances in which that person does not consent to such material being admitted.

The FJC Guidance on the legality and admissibility of covert recording provides some welcome clarity as well as serving to illustrate the potential pitfalls of covert evidence gathering and is essential reading for practitioners faced with this issue. Whilst clients increasingly wish to obtain and rely on covert recordings, the guidance is quick to warn that 'the covert recording of children rarely promotes a child's welfare whatever the intention'.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.