New Guidance on Covert Recordings in Family Law Cases – perspectives from Family Law and Data Law

The Family Justice Council (FJC) has recently published important guidance on covert recordings in family law proceedings concerning children. Andrew Smith, Family Law partner at Spencer West LLP, addresses the growing trend of parents using smartphones and other devices to secretly record conversations and interactions, whilst James Clark, partner in Data Protection and Privacy law, considers the issue of covert recordings from a data and privacy law perspective.

What are covert recordings?

Simply put, covert recordings are “any recordings made without the express knowledge and permission of the people being recorded, whether by video or audio.”

It has become increasingly common for parents to record:

• Their children
• The other parent during handovers
• Conversations with professionals like social workers, CAFCASS officers, or solicitors
• Meetings with teachers, doctors, or therapists
• Phone calls with the other parent

Family Law Perspective

Why the FJC created this guidance

Sir Andrew McFarlane, President of the Family Division, highlighted that this has become “a growing area for the courts to consider with little guidance available to judges or other professionals.”

The guidance aims to:

• Create consistency in how courts approach these recordings
• Protect the privacy of those being recorded
• Help parents understand the potential consequences
• Encourage professional bodies to develop their own guidelines

The hard truth about recording your children

Many parents believe secret recordings will provide crucial evidence to support their case. The reality is often quite different.

The guidance makes clear that there are very few cases where secretly recording a child has actually helped the recording parent. In fact, the court is more likely to view such recordings as evidence of:

• An invasion of the child’s privacy
• A serious breach of trust
• Poor parenting judgment
• Inability to put the child’s emotional needs first

As Mr Justice Peter Jackson stated in one case: “It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence.”

Recording the other parent:

Some parents feel recording is the only way to prove their ex’s behaviour. However, the guidance warns that such recording can itself be seen as:

• A form of surveillance
• Potentially harassing behaviour
• Evidence of “distorted and obsessive thinking”
• In some cases, controlling or abusive behaviour

The court may view your recording habits as highly relevant when determining child arrangements – but not in the way you might hope.

Recording professionals involved in your case:

A particularly concerning trend is the covert recording of professionals such as:

• Social workers during home visits
• CAFCASS officers during interviews
• Solicitors during meetings
• Judges during hearings
• Contact centre staff during supervised contact

Parents who record professionals often do so because they:

• Distrust the professional’s intentions
• Fear their words will be misrepresented
• Want to “catch out” a professional they believe is biased
• Hope to gather evidence of perceived unprofessional conduct

However, the FJC guidance highlights several problems with this approach:

• Breach of trust: Recording professionals without consent damages the working relationship and makes it harder for them to help your family.
• Counterproductive: Rather than proving bias, secret recordings often demonstrate an unwillingness to engage constructively with the process.
• Professional concerns: Courts may view such recordings as evidence of a parent’s inability to work with professionals – a factor that can influence decisions about child arrangements.
• Legal and ethical issues: Some recordings may breach confidentiality rules, professional codes of conduct, or even court rules if they involve court proceedings.

The guidance suggests that courts will carefully scrutinise the motivations behind recording professionals and whether this behaviour indicates deeper issues with accepting professional input.

If you’re considering making covert recordings, be aware of these potential consequences:

1. Cost implications

Dealing with covert recordings in court can be expensive. The court may need to:

• Hold additional hearings to determine admissibility
• Order transcription of recordings
• Appoint experts to authenticate recordings
• Potentially order you to pay costs if the recordings are deemed inappropriate

2. Legal risks

Beyond family proceedings, covert recordings could expose you to:

• Civil actions from the person recorded
• Injunctions for harassment
• In extreme cases, criminal liability for stalking or coercive control
• Contempt of court if recordings are shared inappropriately
• Professional complaints if you record professionals without consent

3. Impact on your case

When deciding whether to admit covert recordings as evidence, courts will assess:

• Authenticity and completeness of the recording
• Probative value (how relevant and helpful it is)
• Relevance to the issues in the case
• How the recording was obtained
• The impact on the child’s welfare
• Whether the child needs separate legal representation
• Whether the child should be told about the recording
• The purpose behind the recording, particularly of professionals

Data Law Perspective

The FJC guidance is a reminder that, due to the proliferation of digital devices, data protection and privacy law is now an important consideration in many areas of life. Anyone with a smartphone now has the ability to capture, store and easily share a high-quality audio or video recording. Moreover, the rise of social media platforms has arguably helped to create a culture in which the recording of oneself and of others is normalised.

However, making, using and sharing a covert recording can expose someone to serious obligations and potential liability under data protection and privacy law, and also causes a headache for the court in light of its own obligations in this domain.

First, data protection law. Whether an individual, acting in a personal capacity, can be subject to data protection law (i.e., the UK GDPR and the Data Protection Act 2018) is something of a grey area. There is an exemption from data protection law for personal data that is collected and used for solely ‘domestic purposes’ – that is, data that is processed in the course of a purely personal or household activity, with no connection to a professional or commercial activity. This exemption is important – without it, day-to-day activities like writing a birthday email to a friend would technically be regulated activities!

However, the ICO and the courts have long been clear that not everything that a private individual does with personal data benefits from the domestic purpose exemption. Per ICO guidance, where personal data is processed by an individual in a professional setting (such as in the home with a social worker present) then data protection law may apply. On this, the guidance quotes the words of Peter Jackson J in M v F (Covert Recording of Children) [2016]:

“I believe that there may be good arguments for saying that the covert recording of individuals, and particularly children, for the purpose of evidence-gathering in family proceedings would not benefit from the domestic purposes exemption.”

The person making the covert recording is not doing so for ‘purely personal or household’ reasons, but rather to improve their position in a legal dispute, and in so doing they may be causing detriment to the other parties to the dispute, as well as any children.

Where data protection law does apply, the person making the recording becomes a ‘data controller’, a role which comes with a raft of obligations and restrictions. For example – needing to establish a ‘lawful basis’ to use the data or disclose it to a third party; providing information to those whose personal data is processed about the use of their data; and complying with requests from those individuals to access or erase copies of the data held. Whilst the Data Protection Act creates an exemption from many of its obligations in cases where the disclosure of personal data is necessary in connection with legal proceedings, that exemption would only be applicable where the covert recording is needed for the legal proceedings, which the guidance explains will often not be the case.

Aside from data protection law, the tort of misuse of private information might also be relevant. A relatively new branch of the law of confidence, the tort developed out of the case of Campbell v MGN [2004]. Actionable misuse of private information occurs where an individual has a reasonable expectation of privacy in some information, and there is then an unauthorised disclosure of that information that causes detriment to the individual. It is easy to see how an individual could claim a reasonable expectation of privacy in information that is covertly recorded in a private or confidential meeting, and how detriment might be caused by disclosure of that information.

Lastly, it is worth considering the court’s own legal obligations with respect to privacy. Under the Human Rights Act, courts in the UK must apply the law in a way which respects human rights, as far as this is possible. One of these rights is the right to respect for private and family life – the so-called ‘right to privacy’. Particular consideration would need to be given to the impact of this right in cases involving children – who have legitimately higher expectations of privacy – and in cases where a recording was made of a confidential meeting, such as one involving a legal advisor. If there are any doubts about the authenticity, completeness or relevance of a covert recording, a court is likely to be influenced by the need to ensure respect for the right to privacy in determining whether to allow use of the recording.

Final thoughts

While technology makes recording easy, the legal and emotional implications are complex. The court’s primary concern is always the welfare of the child – and secret recordings often suggest a focus on conflict rather than cooperation.