Any recordings of someone without their express permission are known as ‘covert recordings’. It is common for those within court proceedings or disputes with their ex-partner to try and collect evidence by way of covert recordings. This has in particular increased now that smartphones and other forms of technology make it easy to do this.
In May 2025, the Family Justice Council released guidance on the issue of covert recordings and how they should be dealt with. This guidance highlights the risks of trying to use covert recordings and indicates that the issues which arise from them can often outweigh any evidential value that they might have. It is therefore very important to consider these risks before recording your ex-spouse or child.
The Lawfulness of Covert Recordings
The court has argued that covert recording individuals for the purpose of evidence-gathering for a court matter is a breach of the General Data Protection Regulation (now known as ‘the UK GDPR’).
The other way in which covert recordings could lead to legal chastisement is if the person recorded seeks injunctive relief on the basis that they consider the act of recording them as an act of abuse or harassment.
The Perception of Covert Recordings within the Family Court
It is important, within the court process, to be mindful of how the court is likely to perceive the evidence itself and how it was obtained.
In providing a recording of your ex-spouse or your child, you are confirming to the court that you are recording members of your family without their permission. This itself is likely to be met with criticism. The court has been clear that recording a child covertly is almost always wrong.
This is in particular important to consider within the context of domestic abuse. The act of recording someone can be seen as a form of harassment, surveillance or coercive and controlling behaviour. As discussed, this in itself could open the door to the recorded person seeking an injunction or making a complaint to the police. Allegations of domestic abuse can also impact the court’s approach to child arrangements.
The Questions which Arise from Covert Recordings
Not only does the production of covert recordings give rise to questions about whether the recorder behaved inappropriately, it can also lead to questions about the recording itself.
The court has to be very cautious with covert recordings because they can give rise to questions about admissibility, relevance and authenticity. These issues will need to be grappled with by the court in what can become satellite litigation.
In terms of authenticity, it can be very hard to establish whether a recording has been tampered with. This means that expert evidence can be needed to provide meta data analysis.
Due to these issues, it is important that if you have a recording that you provide it to your solicitor in its full form (not tampered with in any way) and in its original format.
Even without questions about authenticity, covert recordings almost always raise questions about context. The court is likely to query the value of a recording when one person knows they are being recorded but the other person does not.
The Court’s Approach to Covert Recordings within Case Management
In summary, the guidance states that if a person wishes to admit covert recordings then this issue needs to be dealt with as soon as possible. They will need to make an interim application (via Form C2) to request that the court consider this matter. The application should set out
- The nature of the recording – its context, whether it is edited, and the date and time;
- The method of the recording and why it was obtained covertly; and
- The relevance of the contents to the issues in the proceedings.
If a stand alone hearing is needed to deal with the covert recording then this is likely to cause delay and an increase in costs.
Conclusion
It can be tempting to record an ex-partner or a child at home, especially within the court process where parties often feel unheard.
However, whilst a recording might feel like clear cut evidence or proof, they are can often be unhelpful. They can detract from the key issues within a case and lead to criticism of the person who has taken the recording.
We Can Help
Understanding covert recordings and whether they are likely to assist your case can be complex. Our family law specialists can help you considered your case and ensure that the court understands your perspective, whilst putting forward the best evidence available to you.
If you would like advice on any of the issues dealt with in this article contact us to discuss your next steps.
