Can I use secret recordings as evidence in the Family Court?

January 6, 2026

The rise of smartphones and discreet recording devices has made covert recording increasingly common, and within family law proceedings, parties have been known to make recordings to use as evidence in court to support their case. The Family Justice Council (FJC) issued comprehensive guidance in May 2025 to address the legal, ethical, and procedural implications of such recordings.

What is Covert Recording?

Covert recordings are audio or video recordings made without the knowledge or consent of the individuals being recorded, i.e. they are secret.

In family proceedings, particularly disputes as to arrangements for children, it is easy to imagine why people might think such recordings could help them. A party could be gathering evidence of their ex-partner’s behaviour, or of how their child feels about their other parent. The FJC guidance identifies at least three categories of covert recording:

  • the covert recording of children;
  • the covert recording of professionals (which, in this context, may be a Cafcass officer or social worker); and
  • the covert recording of other family members.

While a party may think such evidence is helpful, the FJC guidance refers to the concern that the secret nature of covert recordings can intrude on privacy, cause harm to relationships and lead to concerns about the accuracy of such recordings. Covert recordings may not be well received by judges. In the case of Re C (A Child) EWCA Civ 1096 (2015), a father made recordings of his daughter, and of handovers with her mother, and persisted in doing so despite previously agreeing to stop it. The judge held that the use of recording equipment had been abusive, commenting in judgment:

“[The father] is quite unable to understand that his frequent recording and photographing of [the child] is emotionally abusive of her. As [the child] grows up, what is she to make of it? She will know, if she does not already, that [the father] is looking all the time for the means to criticise [the mother].”

Is covert recording legal?

There is no outright prohibition on covert recordings being used as evidence in family court. The Human Rights Act 1998 can be relevant, albeit more to organisations or professionals acting as part of their role, than to an individual acting in their personal capacity. Recordings made since May 2018 can be subject to the provisions of the General Data Protection Regulation (the GDPR) and the Data Protection Act 2018, which can apply to both professionals and individuals. There is an exemption in respect of data processed in the course of a purely personal or household activity, however whether this exemption will apply to covert recordings made for the purposes of court proceedings is uncertain, adding to the general feeling that parties should exercise caution in making such recordings.

Judges will weigh up all relevant considerations when deciding whether covert recordings are admissible, and what weight they should be given, including the proportionality of their inclusion, the relevance of the recordings, how they were obtained and whether the evidence obtained is reliable, complete and free from manipulation.

If a judge refuses to admit the covert recording as evidence, they will then not take it into account when making their decision. Even if a recording is admitted as evidence, it may carry little weight if it appears staged or edited.

Is covert recording ever helpful?

There have been cases in which recordings have assisted the court, such as by exposing serious inaccuracies in an expert’s report. In the case of Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66, covert recordings were admitted that revealed a foster carer making racially abusive remarks towards a parent with a learning disability, which undermined the foster carer’s evidence and credibility and significantly changed the court’s view of the case. 

Risks and consequences of carrying out covert recordings

However, covert recordings can backfire. The FJC guidance raises concerns about the potential for damage to relationships, particularly in the context of parents recording their children. In the case of M v F (Covert Recording of Children) [2016] EWFC 29, the father placed a recording device in his child’s clothing to find out what was being said between the child and a social worker. The judge took a dim view, commenting that “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…this should hardly need saying”, and eventually deciding that the child should live with its mother. Further risks can include civil or criminal liability as a result of privacy violations; inferences of harassment or controlling or abusive behaviour drawn from surveillance; and damage to credibility if the recordings reflect poor judgment or manipulation. Judges can also make costs orders, requiring a party to pay the legal costs of the other party. 

How can we help

Covert recordings in family court are a double-edged sword, often raising serious ethical and legal concerns. Legal advice should be sought before such recordings are made and it must not be assumed that they will benefit a party or family member or that they will be permitted into evidence. If you would like to discuss the covert recording with one of our expert family lawyers, please contact us.

Sarah Speed
Partner, Family
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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