Covert recordings have gradually become one of the more disruptive features of modern family litigation. With a phone never far away, many parents feel tempted to capture conversations or interactions in secret. People often assume a hidden recording will give them an advantage, but the family courts treat such material with significant caution and disapproval.
A covert recording is one that is made without the other person’s knowledge. The Family Justice Council has raised concerns about how frequently these recordings now appear in disputes, involving not only adults but, also children. Due to the manipulation of the recordings and because AI-generated audio adds new risks, judges must look beyond “what is on the tape”.
Court’s approach
Family courts do not automatically exclude covert evidence, but they rarely treat it as neutral. Judges examine why the recording was made, whether the recorder aimed to provoke or manipulate the situation, and what the act of recording reveals about their behaviour. In many cases, the decision to record secretly becomes more significant than the content that the parent hoped to capture.
Recordings involving children and adults
Courts almost always disapprove of covertly recording children demonstrated in case law. In M v F (Covert Recording of Children) [2016], a father hid a device in his child’s clothing. The court regarded this as emotionally harmful and inconsistent with meeting the child’s needs. Although the court admitted the recordings because they exposed other concerns, the judge made his position clear: secretly recording a child causes emotional harm and reflects poor judgment. The courts consistently stress that children should never be used for collecting evidence.
Recordings of parents as well as children also may raise concerns about harassment or controlling behaviour. In HKS v HSM [2021], repeated secret recordings by one parent were treated as relevant to the assessment of domestic abuse.
Procedural requirements
Once a party introduces covert material, the procedural burden becomes heavy. A party wishing to use covert recordings must apply to the court usually via a C2 application which sets out what the recordings contain and the circumstances in which they were made, why they were obtained secretly and their relevance to the issues in dispute. The court may need transcripts as well as time to resolve disputes about editing or authenticity. The Family Procedure Rules give judges broad control over admissibility, and they frequently restrict covert material if it risks delaying the case or prejudicing fairness.
Consequences of Recordings
A simple reality underpins all of this: most covert recordings do not help the court. They tend to be selective, made during moments of conflict, or designed to catch someone off guard. They can harm the integrity of the party recording and raise safeguarding concerns, especially if the parent involved a child in the process.
Solicitors must advise clients firmly. Anyone considering a covert recording should understand the risks: the court may exclude the material, draw adverse inferences about their behaviour, or face delays while the court examines the recordings. More seriously, the recording may harm a child or drag them into disputes.
While family courts recognise that covert recordings can in rare situations reveal important information, they remain equally alert to the reasons not to rely on them. In a system committed to welfare, fairness and proportionality, secret recordings do not fit within this framework.
