Covert Recordings In Family Proceedings: What Does The Law Say? (20 August 2026)

With smartphones making it easier than ever to record conversations and interactions, covert recordings are becoming an increasingly common feature of family proceedings involving children.

A parent may secretly record a conversation with the other parent, a child, or a professional such as a social worker or Cafcass Family Court Adviser because they believe the recording will provide important evidence. In some cases, covert recordings have helped expose serious failings or provide evidence that might otherwise have been difficult to establish.

However, making or relying on a covert recording can carry significant legal and welfare implications. The Family Justice Council (FJC) published specific guidance on covert recordings in family proceedings concerning children in May 2025, providing important guidance for both professionals and those involved in proceedings.

The key message is that a covert recording is not automatically inadmissible, but neither is it automatically evidence that the court will rely upon. The circumstances in which it was made, its relevance, authenticity, and potential impact on the welfare of the child will all be important.

What is a covert recording?

The FJC defines a covert recording as a recording made without the express knowledge and permission of the person or people being recorded. This can include audio or video recordings made using a smartphone, tablet or other recording device.

In family proceedings, recordings may involve:

• one parent recording another parent;
• a parent recording a child;
• a parent recording a social worker, Cafcass officer or other professional; or
• recordings made during contact or other interactions involving the child.

The reasons for making a recording can vary. A parent may be concerned that their account of events will not otherwise be believed, may wish to document alleged domestic abuse, or may have concerns about the accuracy of professional records.

However, the fact that someone has made a recording does not necessarily mean that it is appropriate to use it in court.

What does the 2025 Family Justice Council guidance say?

The FJC guidance identifies three broad categories of covert recording:

1. Recordings of children
2. Recordings of professionals
3. Recordings of other family members, including parents

Each raises different considerations, but the welfare of the child remains central throughout. The FJC expressly warns that its guidance should not be treated as a guide to creating covert recordings that will be admissible in court.

Recording a child

The courts take a particularly serious view of covertly recording children.

In M v F (Covert Recording of Children) [2016] EWFC 29, Mr Justice Peter Jackson stated that it is “almost always likely to be wrong” to place a recording device on a child for the purpose of gathering evidence in family proceedings, whether or not the child knows that they are being recorded.

The concern is not simply about the content of the recording. Secretly recording a child can affect the child's privacy, emotional wellbeing and relationships with their parents and other adults.

The FJC guidance emphasises that, in cases involving covert recordings of children, the fact that the child has been subjected to surveillance may itself become relevant to the court's assessment of a parent's ability to understand and promote the child's emotional needs.

This means that a parent who believes they are gathering evidence to strengthen their case could, in some circumstances, create evidence that causes the court to question their own approach to parenting.

Recording professionals

Parents sometimes covertly record meetings with social workers, Cafcass officers, experts or other professionals because they are concerned that what was said will not be accurately reflected in subsequent notes or reports.

The FJC recognises that there have been cases where recordings of professional interactions have had genuine evidential value. For example, covert recordings have, in some cases, helped expose discrepancies between what was actually said during a meeting and what was subsequently recorded or reported.

However, recording professionals covertly can also undermine relationships between parents and those professionals, and may affect the way future assessments or interactions take place.

The FJC therefore encourages greater transparency around recording and the development of professional policies supporting overt recording where appropriate.

Recording another parent or family member

A parent may believe that secretly recording the other parent is the only way to demonstrate abusive, threatening or controlling behaviour.

There may be circumstances in which a recording provides relevant evidence. However, repeated or intrusive surveillance can itself raise concerns.

The FJC guidance notes that repeated covert recording of one parent by another may, depending on the circumstances, amount to harassment or form part of controlling or abusive behaviour. The court may also consider the recording itself when assessing the welfare of the child and the parties' ability to promote healthy family relationships.

This is particularly important in cases where domestic abuse or coercive control is alleged. A recording should therefore not be considered in isolation from the wider circumstances of the case.

Will the Family Court admit a covert recording?

There is no blanket rule preventing covert recordings from being admitted into evidence.

Instead, the court will consider the circumstances of the particular case and will undertake focused case management to determine issues such as admissibility, relevance and the weight that should be given to the recording. The FJC guidance stresses that these issues should be raised with the court at the earliest opportunity.

The court may consider:

• Relevance: Does the recording relate to an issue that the court actually needs to determine?
• Probative value: Does it genuinely assist the court in deciding an issue?
• Authenticity: Is the recording genuine and can its provenance be established?
• Completeness: Is the court being given the full recording, rather than a selective or edited extract?
• Context: What was happening before and after the recorded conversation?
• Method: How, when and why was the recording made?
• Welfare: What impact has the recording had, or could it have, on the child?
• Proportionality: Is it proportionate for the court to spend time investigating and determining issues relating to the recording?

The court may also need to consider whether the recording constitutes hearsay evidence and which evidential rules apply. In many children cases, hearsay evidence will be admissible, but the court will still need to determine what weight, if any, should be attached to it.

What should you do if you have made or received a covert recording?

If you have a covert recording that you believe is important to your case, it is generally sensible to obtain legal advice before distributing it or attempting to rely upon it.

The FJC guidance recommends that issues concerning covert recordings are raised at an early stage rather than being introduced unexpectedly at a final hearing. Late disclosure can cause delay, additional costs and disruption to the court timetable.

Where an application is required, the FJC guidance states that a C2 application should be made on notice to the other parties. The application should explain matters including the nature and context of the recording, when and how it was made, whether it has been edited, why it was made covertly and how its contents are relevant to the issues in the proceedings.

It is also important to preserve the original recording and avoid editing or altering the material. The court may need to consider the recording's authenticity and completeness, and may require transcripts or further information about how the recording was created.

Professionals involved in proceedings, including Cafcass officers, are generally advised not to listen to or view covert recordings until the court has determined whether the material should be admitted into evidence.

Could making a covert recording affect your family court case?

Potentially, yes.

One of the most important aspects of the FJC guidance is that the court may consider the circumstances in which the recording was made, rather than simply what the recording appears to show.

For example, if a parent repeatedly records their child or places a recording device on them, the court may consider whether that conduct demonstrates an inability to appreciate the child's emotional needs or the impact of the surveillance on the child.

Similarly, repeated surveillance of another parent may raise questions about controlling or harassing behaviour.

This does not mean that anyone who makes a covert recording will automatically be viewed negatively. Family cases are fact-specific, and there may be circumstances in which a recording provides valuable evidence. The important point is that the decision to make and rely upon a covert recording should be considered carefully.

Privacy and data protection considerations

There can also be wider legal issues surrounding the creation, storage and sharing of recordings.

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. Data protection legislation may also apply to the processing, storage and sharing of personal data contained in recordings, depending on the circumstances.

The FJC guidance makes clear that simply making a recording in a domestic setting does not necessarily mean that data protection law is irrelevant. In particular, sharing a recording with another person or professional body may constitute further processing of personal data and require an appropriate lawful basis.

There is also an important distinction between recording private individuals and recording court proceedings. Court hearings must not be covertly recorded. Unauthorised recording of court proceedings can amount to contempt of court and may carry serious consequences.

The welfare of the child comes first

Ultimately, children proceedings are concerned with the welfare of the child.

A covert recording may appear to offer a straightforward way of proving what happened, but family proceedings are rarely that simple. A recording can provide valuable evidence in one case while creating significant difficulties in another.

The court will therefore consider not only what the recording shows, but also why it was made, how it was obtained, its reliability, its relevance and the consequences of the recording for the child and the wider family.

The 2025 FJC guidance is an important development because it provides greater consistency in the way these increasingly common issues are approached.