Covert recording – is this allowed?

A covert recording is when one person makes either an audio or video recording of someone else without their knowledge or permission. Now that the technology to easily make such recordings is commonplace, the Family Courts are increasingly being asked to consider covert recordings. 

Up until now, there has been little official guidance on how the Family Courts will treat covert recordings. However, this month the Family Justice Council has published their guidance on covert recordings in Family Law proceedings, specifically for cases concerning children. 

While there have been cases where covert recordings have provided crucial evidence, the guidance expresses concerns about invasions of privacy, harm, and inaccurate evidence. 

It is understandable that people might feel as though a recording is the best way to accurately document their experience. However, there are many ways in which a recording can be misleading. For example, the way a recording is edited or the interactions between the parties, such as one party asking leading questions, can influence the evidential value of a recording.

If covert recordings are made of another adult, such as the child’s other parent, this might amount to harassment. This could be taken into account by the Court when deciding what is in the child’s best interests.

Parents also sometimes make covert recordings of their children. The Family Justice Council was told by young people that covert recordings were an invasion of their privacy and felt like a betrayal of trust. The Court will consider whether the covert recording was harmful to the child. 

If a parent wants to record a professional, such as a social worker, they should first ask for permission. While the professional might agree to this on the basis that their work should be open and transparent, the Court will not necessarily allow the recording to be part of the evidence. The other parent or their legal advisors may also need to be made aware that the recording exists. 

It should be noted that Court proceedings must not be recorded without express permission. Recording Court proceedings, whether the Hearing is in person or virtual, may be contempt of court.   

In order to request that a covert recording be admitted as evidence by the Court, it may be necessary to make an application on Form C2. When making the application, it will be necessary to provide an unedited version of the recording and possibly a professional transcript. A separate Hearing may be required to consider the application. This may increase the cost and duration of proceedings. The Court will then consider whether it is proportionate, necessary or relevant to consider the recordings before they are admitted as evidence. 

The guidance from the Family Justice Council provides welcome clarity for individuals and professionals about the treatment of covert recordings in Family Law proceedings concerning children as this type of evidence becomes increasingly common. 

For more information on children proceedings, please contact Rebecca Curran, Paralegal in the Family Law Department at SE-Solicitors, on 01295 204055, or by email at rcurran@se-solicitors.co.uk