Date published: 9/12/25

In today’s digital age, where technology has made recording easier than ever, it’s becoming increasingly common for parties in family proceedings to make recordings of conversations, meetings or interactions. These recordings, particularly covert ones made without the other person’s knowledge, have become a growing feature in family court cases. 

But is recording your ex-partner or your child a good idea? And will such recordings help your case particularly in children cases where parents don’t agree who children should live with and how much time they should spend with each parent? The answers aren’t straightforward and the Family Justice Council has recently published comprehensive guidance on this complex topic. The guidance is explored below.  

What are covert recordings? 

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

Why do people make covert recordings? 

People may choose to record others for various reasons. Some want to preserve an accurate record of what was said or done, particularly when they don’t trust official notes or accounts. Others seek to gather evidence for court proceedings such as children proceedings or to document behaviour they fear won’t be believed without proof. For some, a recording feels like the only way to prove what happens behind closed doors. However, the reality is more complicated and recordings often raise more issues than they resolve.  

The court’s approach

The Family Court doesn’t automatically reject or accept covert recordings. Each case is assessed individually, with several key considerations.  

Before engaging in a full consideration of the recording, the court must be satisfied that, taken at its highest, the content is relevant to the issues that need to be decided. The test for relevance was succinctly expressed by Lord Simon of Glaisdale in Director of Public Prosecutions v Kilbourne [1973]: “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof”.  

For such evidence to be admissible in children’s proceedings, it must fall within the parameters of the Children (Admissibility of Hearsay Evidence) Order 1993. Specifically, it must be “evidence given in connection with the upbringing, maintenance or welfare of a child”. 

When it comes to admissibility, if you want to use a recording as evidence, you must inform the court as early as possible, not at the last minute. You’ll likely need to make a formal application for permission for a recording to be admitted as evidence, explaining the context, method and relevance of the recording.  

In such a digital era, the court is justifiably concerned about manipulation and selective editing, meaning you’ll need to preserve original recordings in their entirety. The court may require a transcript of the audio recording, possibly prepared by an independent party. If authenticity is disputed, the court might require expert forensic analysis examining factors such as metadata, timestamps, potential editing or splicing and vocal content authenticity. This can be a potentially expensive and time-consuming process, seen in M v F (Covert Recording of Children) [2016] where transcription charges alone cost £1,500.  

Additionally, recordings made after May 2018 are subject to UK GDPR and the Data Protection Act 2018. Whilst personal or household activities are generally exempt from these regulations, recordings made specifically for court proceedings might not qualify for this exemption. 

Recording other parents 

Recording another parent may sometimes capture valuable potential evidence but the court will also consider whether the act of recording is itself an example of behaviour that is harassment or obsessive or controlling. Judges examine if it constitutes harassment or invasion of privacy, its impact on co-parenting relationships and whether it demonstrates an inability to put the child’s needs first. Repeated covert recordings have been found to be relevant to the court’s decisions about the arrangements that are best for a child and not always in the favour of the party seeking to rely on them. 

Recording children 

The courts take a particularly dim view of recording children, more so if they are covert recordings. Such a stance exists because such recordings breach a child’s trust and privacy, potentially causing significant emotional harm. For instance, if a child knows they are being recorded, they may feel pressured into saying things just to please their parent. Often, recordings reveal more about the recording parent’s capacity to meet the child’s emotional needs than the (alleged) concerns held by that parent. For example, in Re C (A Child) [2015], the court noted that recordings included repeat questioning of a child which was leading and suggestive, raising concerns that the child had learned that “F likes to hear bad things about [her Mother]”. 

Key Takeaways 

• If you are considering making a recording, first explore alternatives. Could the issue be addressed through better communication, mediation or legal channels?  
• Seek legal advice before recording to understand the potential benefits and risks to you, including criminal law implications in some circumstances.  
• It’s usually best to never record children covertly or otherwise for the purpose of obtaining potential evidence for proceedings. It could harm your relationship with them and rather than help your case it may have the opposite effect.  

If you already have recordings you wish to rely on in proceedings about child arrangements, you should discuss this with your solicitor early in the process so that the potential benefits and risks to you may be considered. Be aware that seeking to use recordings as evidence can significantly increase the length and cost (both financially and emotionally) of proceedings. They can also have a long-term adverse impact on relationships, especially with the co-parent. 

If you are not working with a solicitor, consider disclosing the recordings early in proceedings and be prepared to explain their relevance.  

Either way recordings should not be edited and the originals should be preserved in case their authenticity becomes a point of dispute. 

It is also prudent to keep in mind that there is an absolute ban on the unauthorised recording or filming of court hearings and there can be serious consequences for such a recording.  

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