Covert Recording in Children Proceedings | Kew Law

Whilst it may be tempting to record situations as they unfold for evidential purposes, the Family Justice Council has recently published guidance in relation to the use of covert recordings during family law matters, including disputes surrounding children. This outlines that careful consideration needs to be taken before evidence such as recordings of other parties, and children, can be admitted as evidence in a case. Therefore, parties need to proceed with caution when considering collecting and using evidence.

This guidance emphasises people’s right to privacy, whether that be professionals (such as legal advisors, Cafcass officers, or medical practitioners) or individuals (such as other parties in the case, and any children involved).

What is Considered a Covert Recording?

A recording would be considered covert if it has been taken of another individual without their knowledge or consent for you to do so. For example, taking a secret video of another parent during a conflict, setting up secret cameras in the home, or privately recording telephone calls. In some situations, a party in the case may make covert recordings for the purpose of gathering evidence to be used in an ongoing case, in order to support their position, or to prove a specific point in contention.

What is the Court’s Position on Covert Recordings?

It is often a difficult question for the Court to consider whether a cover recording should be accepted as evidence in the case. This is a complex issue, but the Court will need to consider the evidential value of the recording in question, and whether this brings anything to the case. For example, does this resolve a particular material issue that cannot be resolved in any other way?

The Court will also need to consider the integrity of the recording itself. They will need to assess whether the recording has been edited or manipulated in any way, which would paint an inaccurate version of events. In some situations, an expert’s opinion may even be needed to ascertain whether the recording has been manipulated. For example, certain sections of the conversation may have been edited out, to change the context of the evidence and paint an entirely different picture of the conversation that took place.

The Court will need to pay significant regard to the right of privacy of those being recorded, which is an important issue to consider. It may be regarded as an encroachment of a person’s right to privacy, and in some cases, detrimental to their wellbeing, to secretly record them. This is all the more salient when the recording involves children, which can lead to a serious breach of their trust and confidentiality, especially if the recording is being taken by a trusted adult, such as their parent. As such, the Court generally does not accept covert recordings of children as evidence. In certain situations, the Court may even draw an adverse inference against the parent who recorded the child, regardless of the contents of the recording itself, on the basis of a serious breach of that child’s privacy.

Issues of privacy and trust are also relevant considerations for recordings of other adults, as this could even amount to evidence of harassment by the recording party, which could have a detrimental impact on their legal position.

It is, therefore, essential that specific and thorough legal advice is taken before any recordings are submitted to the Court as evidence to consider the usefulness of such evidence, the chances of it being admissible, and any adverse implications it may have.