In May 2025, the Family Justice Council (FJC) released long-awaited guidance on covert recordings in family proceedings concerning children. As Sir Andrew McFarlane acknowledges in the foreword, this is a “growing area for the courts” with limited prior guidance — and increasing complexity due to modern technology.
Whether it’s a parent bugging a child’s backpack, secretly taping social workers, or a covert smartphone recording mid-contact handover, this document seeks to bring clarity — and consistency — to a controversial but increasingly common issue.
What’s the Big Deal?
Covert recordings are often born of mistrust: parents feeling disbelieved, professionals under scrutiny, and children caught in the crossfire. The court is now regularly asked to weigh the evidential value of a secret tape against the ethical and emotional damage its making may cause — especially to children.
The new guidance covers:
- The legal framework (including data protection and human rights concerns)
- Case management issues around admissibility
- The welfare implications for children
- The views of young people, who overwhelmingly find the idea intrusive and upsetting
Key Principles for Practitioners
- Lawfulness Isn’t Enough
Just because a recording might not be illegal doesn’t mean it’s admissible — or wise. In family proceedings, the court is guided by welfare and fairness, not simply evidence-gathering tactics.
- Children Should Almost Never Be Recorded
The guidance is blunt: recording children is rarely justifiable. Peter Jackson J described it as “almost always likely to be wrong.” Not only are these recordings usually unhelpful in content, but the fact that a parent spied on a child may itself be damaging evidence of their inability to prioritise the child’s welfare.
- Covert Recordings of Professionals Are a Mixed Bag
Some famous cases (Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66 (2 June 2015), Re F (Care Proceedings: Failures of Expert) [2016] EWHC 2149) show that recordings have exposed malpractice. But many are partial, misleading, or simply time-wasting. Courts are urged to ensure proper case management and avoid “satellite litigation” over admissibility.
- Publication is a Legal Minefield
Sharing recordings — especially on social media — could breach data protection law, amount to contempt of court, or even attract civil or criminal liability. The risks are real and rarely worth the perceived reward.
- Professionals Should Develop Overt Recording Policies
Rather than fearing every phone in a parent’s pocket, the FJC recommends agencies consider transparent recording policies, allowing agreed recordings with safeguards. This could reduce tensions and avoid covert behaviour entirely.
A Practical Checklist for Lawyers
If your client has made or received a covert recording:
- Advise caution: It could backfire in court.
- Assess intent and content: Why was it made? What does it actually prove?
- Disclose early: Avoid ambush. The court expects transparency.
- Beware of data risks: Storing or sharing personal data without basis could breach GDPR.
- Consider the impact on the child: Not just legally, but emotionally and relationally.
Final Thought
The FJC’s guidance doesn't ban covert recordings, but it issues a clear warning: use with extreme care. In most cases, it is the act of recording — not what is recorded — that matters most.
For lawyers, this means stepping back from the adrenaline rush of “gotcha” evidence and reminding clients that in family proceedings, trust, welfare, and fairness remain the watchwords.
