In family law, evidence is often contested, and parties may be tempted to record conversations or interactions secretly in the hope of supporting their case. The Family Justice Council’s latest guidance offers important clarity on when, if ever, such covert recordings should be used, and the significant risks involved.
What counts as “covert”?
A covert recording is any audio or video made without the knowledge or consent of the person recorded. This includes recordings of professionals, family members, and children.
A red line: recording hearings
Recording a court hearing without permission is contempt of court under s.9 Contempt of Court Act 1981. This applies to in-person hearings and remote hearings alike. The penalties can be severe, including fines and imprisonment.
Admissibility is not guaranteed
The court has discretion under the Family Procedure Rules to admit covert recordings if they are relevant and reliable. However, it may refuse to admit them where authenticity is disputed, where they have been edited, or where admitting them would cause delay or prejudice. Early case management of such evidence is essential, usually by way of a C2 application.
Risks of recording children
Secretly recording children is strongly discouraged. Young people consulted for the guidance viewed such recordings as harmful, intrusive, and of questionable value. Courts may regard the act of recording as undermining a child’s welfare, trust, and emotional security.
Professional interactions
In rare cases, covert recordings have exposed serious professional misconduct or misrepresentation. However, the guidance encourages agencies to develop clear overt-recording policies, so that parents do not feel driven to record secretly.
Data protection and publication
Private recordings may still engage data protection obligations under UK GDPR and the Data Protection Act 2018 once used in proceedings or shared publicly. Posting such material online can breach court confidentiality and may amount to contempt of court, especially if a child can be identified.
Practical steps if a recording exists
If a party already holds a covert recording:
- Preserve the original, unedited version.
- Disclose it at the earliest opportunity.
- Avoid sharing it online.
- Be prepared for directions on transcripts, expert authentication, and admissibility.
Best practice
When possible, seek permission for overt recordings, especially in interactions with professionals. This ensures transparency and avoids undermining credibility in court.
Covert recordings are not a shortcut to justice. They may be excluded, they can damage relationships, and they carry significant legal risk. For litigants, the safest course is to take early legal advice before pressing record. For practitioners, this guidance is a reminder to manage such evidence proactively and in line with welfare, fairness, and procedural compliance.
How Nelsons can help
Melanie Bridgen is a Partner in our Family Law team.
At Nelsons, we have a dedicated team of experts who can give specialist advice and representation. If you need advice on any related matters, please contact Melanie or another member of the team in Derby, Nottingham or Leicester on 0800 024 1976 or via our online form.
Melanie or the team will be happy to discuss your circumstances in more detail and give you more information about the services that our family law team can provide, along with details of our hourly rates and fixed fee services.
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