Covert recordings in private children proceedings

10 March 2023

At the touch of a button, anyone can record whatever is going on around them. Although on the surface recording might seem harmless, it is another story in family proceedings. 

The courts have a difficult decision when considering whether covert recordings should be allowed as evidence, having to balance the right for private and family life as well as data protection against the overall evidential value the recording may have to the proceedings.

Here, Sioned Fitt, Senior Associate in the family law team, examines the dos and don’ts around audio and video recordings.

Can I record my Court Hearing?

Absolutely not. If you are found to be recording court hearings without permission then you may be found to be in contempt of court, resulting in potential criminal sanctions and fines.

Can I record professionals, like Cafcass, who are working on my case?

Family Courts Advisors (FCAs), such as Cafcass officers, allow recordings as they believe their notes are of a high standard and they will only act in a defensible manner - but they will make a note that you have recorded them. This note will be passed onto the court and the other parent may apply to have that recording disclosed to them. Insisting upon a recording may suggest you have an inability to trust professionals or an unwillingness to work with them.

Can I record my ex-partner or my child in my own home?

If the recording is made for a personal or household purpose then yes, you will be able to record. However, if you make the recording with the intention of using it in court proceedings then it will be questionable.

Recording your child to gather evidence is inadvisable as it will be viewed as a breach of their trust and privacy. Your child’s welfare must always be the primary focus. The court will not normally give permission to record children. Whether the court grants permission to rely upon personal recordings in proceedings will be assessed individually and will be the exception.

What if my child never finds out or is not bothered/affected by me doing it?

If the recording is used as evidence, the other parent can request access to this; they may not react well to the contents, especially if it is critical of them or causes distress to your child. Even if the child is not bothered by the very act of recording, this will affect their relationship with potentially both parents and may influence their behaviour.

If the recordings are relevant, surely they will be allowed?

There is no presumption that recordings will be allowed, but each case will turn on its own facts and merits. The relevance of the recording to the issues at hand will be considered against how the recording was obtained, whether your children were involved in obtaining it, and whether the recording is an accurate depiction of what happened.

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