Covert Recordings in Family Law | What You Need to Know

Earlier this year, The Family Justice Council issued guidance on when and how covert recordings may be used as evidence in court proceedings. If you’re involved in a family dispute, it’s important to understand the legal and practical risks before reaching for a recording device.

What Are Covert Recordings?

Covert recordings are any audio or video recording made without the knowledge or consent of the people being recorded. In family law cases, this might include:

• Recording another parent during a child handover to gather evidence of abuse
• Recording a child to capture their views on where they want to live
• Recording conversations with solicitors or legal representatives
• Recording a CAFCASS Officer during a Section 7 Report interview

Common reasons for covert recordings are:

• To ensure that information is not missed or overlooked
• Mistrust of professionals involved in the proceedings
• Collect evidence and to prove the facts that they are alleging

While the motivation may be understandable, the legal implications can be serious.

A Clear Prohibition: Court Hearings

Please be aware that there is an absolute prohibition on the covert recordings of court hearings. If you are found to have done so, you may be found in contempt of court.

Why Covert Recordings Are Discouraged

Courts generally take a cautious approach to covert recordings because they directly interfere with an individual’s right to privacy as well as there being the risk of the recording being edited or scripted, raising questions of its reliability.

Additionally, there may be a delay in the proceedings and extra costs involved as the Court needs time to review the recordings and it may still ultimately be deemed irrelevant, potentially having an adverse impact of the party that submitted it as evidence.

Recording Professionals

There may be circumstances for the covert recordings of professionals. However, it is best to ask the permission of the professionals first as they may have their own safeguarding and policies in place.

Recording Adults

Covert recordings of adults may be interpreted by the court as intimidating, controlling, or coercive behaviour. Regardless of the intention behind covert recordings, the court may be concerned of the emotional and psychological abuse on victims.

Recording Children

This is an area where the courts are particularly sensitive. Covertly recording a child can:

• Harm their emotional and psychological wellbeing
• Be seen as poor parenting, especially if used to attack the other parent
• Damage trust between the child and parent, causing a strain on these fundamental relationships.

Publishing Covert Recordings

Posting a covert recording online, including on social media, can be unlawful. This is especially the case if the recording identifies a child or provides any details of the proceedings.

If the recording is published, the court will consider the party’s conduct in the proceedings. Not only is there a risk to the child’s welfare and privacy but publishing the recording may be considered a contempt of court.

Careful consideration should be taken prior to posting covert recordings.

Applying to Use Covert Recordings in Court

If you are considering using a covert recording as evidence, seek specialist family law advice as early as possible. The Court may draw conclusions about your conduct simply from the fact that you made the recording.

At Hegarty, our experienced family solicitors can guide you through your options and help you understand the potential consequences, ensuring you protect both your legal position and your relationships.