Family Justice Council Guidance May 2025 – a brief summary
[refs] are to the paragraph in the Guidance
The guidance has been issued because the courts are, on an increasingly frequent basis, being asked to consider recordings, which are made without the knowledge of the other parent, the child(ren) or professionals, as evidence within family proceedings. The lack of guidance hitherto has meant that there has been an inconsistent approach to the issue which it is hoped this guidance will remedy. It is also hoped that agencies may develop policies on overt recording that will obviate the perceived need for covert recordings of professionals.
The guidance is quick to warn that “whilst some convert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children and professionals, causing harm and often leading to concerns about the accuracy of the recording” [Foreword] and that “the covert recording of children rarely promotes a child’s welfare whatever the intention” [1.5].
The full guidance can be accessed here. Appendix 4 is designed to give litigants in person an overview of the guidance.
What is clear from the guidance is that any issues relating to covert recording must be identified at the earliest possible stage and be seen as a key issue for case management so as to effectively manage its impact on the case and avoid costly satellite litigation.
[4.2] and [4.3] make it clear that the elements required for effective case management and determination of admissibility factors will result in the court needing to make directions which cover the following:
- The method of disclosure of the recordings to the other parties, including whether transcripts are required
- Establishing the full scope of the recordings, how they came about, and which recordings fall to be considered
- Establishing authenticity if in dispute, including any issues relating to editing
- Establishing the probative value of the recordings to relevant issues in dispute
- Consideration of implications for the welfare of the parties, and in particular the child if having been the subject of covert recordings
- Consideration of costs arising from the application
- Any further hearing to determine the issue of admissibility
Noting that almost all covert recordings will be hearsay evidence the guidance reminds practitioners that, for that hearsay to fall within the parameters of the Children (Admissibility of Hearsay Evidence) Order 1993 and thus outside of any other rule of law relating to hearsay such as the Civil Evidence Act [CEA], it has to be “evidence given in connection with the upbringing, maintenance or welfare of a child”.
The determination will be fact and case specific and should be made by the court. If the hearsay falls within the parameters of the 1993 Order then a party to proceedings relating to a child no longer has a right to challenge the admissibility of the evidence connected with a child on the ground that it is hearsay however the Court will need to assess whether it should be admitted and any weight that will attach to it.
If the court considers that a particular covert recording falls outside the provisions of the 1993 Order then section 2 of the CEA requires that a party seeking to rely on hearsay evidence should give notice. In accordance with FPR 2010 rule 23 an application for the recordings to be determined as admissible evidence should be made as soon as practicable.
Such an application by a party to rely on a covert recording at a final hearing should be made on notice using Form C2 and, as a minimum, the application should provide a summary of the following:
- The nature of the recording – it’s context, whether it is edited, and the date(s) and time(s)
- The method of the recording and why it was obtained covertly
- The relevance of the contents to the issues in the proceedings
Upon being made aware of the existence of and/or the intention to rely on a covert recording under the 1993 Order or on receipt of an application pursuant to FPR 2010 rule 23 the court will need to consider directions necessary to determine whether the recording should be admitted and the issues relevant to any weight to be given to it and ensure that this is a proportionate exercise. The relevance and probative value of the recordings will be key factors. When considering the admissibility of covert recordings the court will also consider FPR 2010 rule 22.1(1), 22.1(2) and 22.1(3).
[4.20] of the guidance warns parties and their representatives not to sit on such recordings and produce them at the 11th hour as late production of such recordings is unlikely to be looked on favourably by the court particularly where the recordings have been in the possession of a party for some time.
Further implications arising from covert recordings may include costs consequences, derivative civil actions and the risk of injunctive proceedings and of criminal exposure relating to harassment.
There are particular considerations relating to the covert recording of children which are addressed in section 5 of the guidance.
Irrespective of whether the recordings can be relied on, as evidence of fact, the court must consider the degree to which the nature of the recordings is pertinent to the welfare analysis of a child [5.2].
Authorities have considered the direct impact of making a child the subject of covert recording or surveillance and also the emotional abuse that can be caused; In Re C (A Child) [2015] EWCA Civ 1096 Lady Justice King cited the judgement of the first instance court as follows “[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]”
When considering any implications for the child’s welfare the court will need to look in particular at the potential need for the child to be represented through a Guardian, whether and how the child should be told that they have been the subject of a covert recording and whether the child will be required to give evidence so as to allow the court to evaluate the weight to be attached to the content of the recording.
There are obvious risks that a parent may compromise any investigation by recording a child who is responding to direct questioning by someone who is not adhering to the strict framework under which children should be interviewed.
A court may also need to consider whether recordings of a child amount to a contravention of section 13(3) of the Children and Families Act 2014 which states that “a person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings”.
In addition to the risks outlined above parents may be wise to heed the views of the children consulted in the development of the guidance. Those young people who were consulted emphasized the extent to which they considered covert recordings of them to be harmful and of dubious evidential value and these views are clearly reflected in Appendix 4 (Litigants guide to Covert (secret) Recording in the Family Court which states as follows:
“In general, courts do not approve of covert recordings of children. Young people have told us covert recordings of them are an invasion of privacy and may cause them to feel that the adult has broken their trust…… The court will need to think about whether all of this is harmful to the child”.
For more information about our family law team please contact clerks@becket-chambers.co.uk
