Guidance on covert recordings published

It is the nature of family law disputes, especially disputes concerning children, that what is in issue between the parties often occurs behind closed doors. In particular, conversations take place, with no one to witness them. Thus when the matter goes to court it is simply one party’s word against the other’s word.

So it can be tempting to covertly record these conversations, to ensure that the court gets the true picture. And such recordings are extremely easy to make these days. No special equipment is required – virtually any mobile phone can be used.

Another category of covert recordings is of meetings between the parents and professionals involved in the case. Such meetings are supposed to be private and confidential, but often the parent(s) will try to seek an advantage by recording them.

The ease of making covert recordings nowadays is making their use as evidence in children proceedings increasingly common.

But there are inherent problems with the use of covert recordings in family court children proceedings, in particular relating to the privacy of those who are being recorded, including parents, children, and professionals.

To address these problems the Family Justice Council, which monitors the family justice system, has recently published guidance on the use of covert recordings in family law proceedings concerning children. The guidance is aimed both at professionals involved in the family justice system, such as judges and lawyers, and at litigants who represent themselves at court.

The guidance begins by looking at the relevant law, and asking the important question: is the recording lawful?  Sometimes this is quite clear, for example the recording of court proceedings is prohibited. On other occasions it is not so clear.

Assuming the recording is lawful, the guidance goes on to look at what the court should consider when deciding whether to allow a covert recording to be used in evidence. This includes such things as the authenticity and completeness of the recording, the extent to which the recording may assist the court in making its decision, and the relevance of the recording to the case.

The guidance also points out that covert recordings can of course be used by the parent making them as a means of harassing or controlling the other parent.

And the guidance looks in particular at the important issue of the recording of children. Obviously, the welfare of the child is paramount, and may dictate that the recording should not be used. (In general, courts do not approve of covert recordings of children.)

The guidance also includes a helpful appendix setting out a summary of what a litigant in person needs to know about the use of covert recordings.

You can find the full guidance here.

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