Secret recordings in child arrangements: what parents need to know

In family law cases, especially those about child arrangements, more and more parents are asking whether they can use ‘covert recordings’ as evidence. A ‘covert recording’ simply means secretly recording someone without their permission. With today’s technology, it’s easier than ever for individuals to record conversations without others knowing.

A ‘covert recording’ involves one party secretly recording another without their consent. The ability to covertly record has changed significantly with advances in technology and the access that individuals now have to devices that can secretly record a conversation.

The Family Justice Council, an advisory body for family courts, has recently issued guidance on using these secret recordings in children’s cases.

Categories of covert recordings

The guidance highlights three main types of covert recordings:

• Covert recordings of parents
• Covert recordings of children
• Covert recordings of professionals

This article focuses on the implications of covert recordings of children and parents.

Can secret recordings be used in court?

The guidance explains whether secret recordings are likely to be accepted as evidence in family court cases.

A key factor for the court is whether the recording is relevant to the issues being discussed. This will depend on the specific details of your case. If the recording directly relates to a disagreement, the court might consider it relevant.

Even if what’s said in the recording isn’t directly relevant to the case, the fact that a recording was made might still be important, as explained later.

The court will also consider how reliable the recording is. It will need to be carefully checked to ensure it hasn’t been altered. With modern technology, it’s possible to edit or even fake recordings, and family courts are very aware of this when deciding if a recording is trustworthy.

Covert recordings of children

The courts view covert recordings of children in a negative light. Courts have recognised that secretly recording a child for use in family proceedings “is almost always likely to be wrong”.

Parents should think carefully about the wider impact of secretly recording their child. Imagine how a child might feel if they found out their private conversation had been secretly used as evidence against a parent in court.

When making decisions about children, the court’s main priority is always the child’s welfare (what’s best for the child). Judges have sometimes noted that a parent who secretly recorded their child showed a lack of understanding of their child’s emotional needs.

Evidence also shows that these recordings very rarely have a big impact on a case. The court is unlikely to give much weight to what’s said in the recording, especially since questioning a child this way usually doesn’t follow the proper guidelines for getting reliable information from children. This seriously undermines how much the court will trust the recording.

Key lessons from the guidance and case law

The Family Justice Council guidance sends a clear message: while a secret recording might technically be used as evidence, this practice is strongly discouraged and could actually harm your case if you record another parent or your child.

At Cripps, we regularly help families navigate complex child arrangement disputes. We can offer guidance on resolving disagreements, always keeping your child’s best interests at the heart of our advice.

If you have concerns about the current arrangements for your children, please contact us today for confidential advice.