Covert (secret) recordings in the Family Court

The Family Justice Counsel has released guidance this month in respect of the making and use of covert (secret) recordings in Family Court proceedings. The guidance can be read in full here and there is a summary version available to litigants in person here.

Recordings in the Family Court

The use of recordings as evidence in family proceedings is certainly something that as practitioners we are seeing more and more frequently. The advent and development of technology is of course a great contributor to the reason that recordings are more prevalent in the Family Court.

As the guidance refers, the ability to record situations is much easier than it was a number of years ago and it is also very easy to transmit and share recordings once made. It can be a minefield at times, and there are various issues that arise when recordings are made. There may be issues with respect to whether recordings made in secret, otherwise known as covert recordings, without the other party knowing, should be admitted as evidence. There may be privacy issues, and the Court may consider the impact that a recording had on the person recorded without their consent. It could be argued that recording without the consent of another parent could amount to harassment.

Generally speaking, the Court does not approve of covert recordings of children. It can understandably lead to the subject children in those circumstances losing trust from the relevant adult, and the Court will consider what impact the recording has had upon the child. This may lead to considering whether the child should give evidence, and the Court will need to think carefully about whether this would be harmful to the child.

The issue of recordings and their use in Family Court proceedings therefore requires very careful thought, consideration and analysis. Depending on whether you are facing a recording having been made of you without your consent, or if you are trying to evidence a particular pattern of behaviour or demonstrate an argument to the Court, the information can be relevant but it can also lead to negative inferences being drawn and sometimes cause more harm than good and lead to more criticism than helping someone’s case positively which might be the intention at the outset.

It is really important to seek advice regarding these matters and to do so at an early stage. Please contact our Family Law team to discuss anything raised in this article.

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