In May 2025, The Family Justice Council (FJC) issued its long-awaited final guidelines on the use of secret recordings in child-related family law proceedings. At a time when smartphones and home surveillance devices have made secret recordings not only possible but commonplace, the FJC’s intervention seeks to strike a balance between the evidential value such recordings may hold and the potential harm they pose to relationships, fairness, and, most importantly, the welfare of children.
This guidance is not a change in the law, but a powerful statement of best practice. It provides a compass for judges, practitioners, and families as they navigate an emotionally fraught and legally complex issue. The fact that it was necessary at all speaks volumes about the tensions that arise in family disputes, particularly where trust has broken down and parties feel compelled to document their interactions in secret.
Why the guidance was needed
The issue of covert recordings has lingered on the periphery of family justice for some time, creating an uncomfortable grey area. In recent years, courts have increasingly been asked to admit secretly made recordings – whether audio files of parental exchanges, videos of handovers, or footage from devices planted in children’s toys. These are often introduced by litigants-in-person, but solicitors and barristers are encountering them more frequently as well.
Until now, the family courts had no unified approach to these materials. Decisions about admissibility were often made on the fly, and questions of privacy, data protection, and emotional harm were inconsistently addressed. The guidance was prompted in part by a growing consensus that these recordings, whilst sometimes illuminating, often do more harm than good. Moreover, there was a concern that parties might be encouraged to undertake surveillance on one another, rather than engage with the process constructively.
As Sir Andrew McFarlane, President of the Family Division and Chair of the FJC, has said: “Litigation concerning children is not a game, nor a battle to be won.” The FJC’s guidance is a reminder that family proceedings are—and must remain—centred on the child’s welfare, not the tactical ambitions of their parents.
A practical framework for practitioners and families
The guidance does not prohibit covert recordings, nor does it declare them automatically inadmissible. Rather, it offers a practical framework for identifying when and how such evidence should be considered, and under what circumstances it might be excluded or discouraged. Its scope covers three main types of recordings: those involving children, those involving professionals (such as social workers or CAFCASS officers), and those involving other adults (such as parents or extended family).
One of the most striking aspects of the guidance is its insistence on nuance. It acknowledges that some recordings may be made out of desperation, particularly by those who feel unheard by the system. A parent may record a social worker visit not out of malice, but from a belief that their words will be misrepresented. Others may do so to evidence abusive behaviour which they feel unable to report through conventional channels. These motivations matter – but so too do the consequences of the recordings themselves.
A key consideration is the intention behind the recording. Was it made to protect a child or to entrap another party? Is it selective and misleading? Has it been edited? The court will want to know not just what the recording shows, but what it omits. Lawyers are now expected to advise their clients not only on whether they can make or submit a recording, but whether they should.
Recordings of children: a warning note
The guidance is particularly firm when it comes to covert recordings of children. These are rarely appropriate and often damaging. Recording a child, especially in secret, risks significant emotional and psychological harm. Children may become aware they are being watched or manipulated, undermining their sense of safety and trust. Worse still, it may distort their relationship with both parents, placing them in the middle of a conflict they are ill-equipped to navigate.
From a legal perspective, covert recordings of children raise serious issues under data protection and human rights law. The Information Commissioner’s Office (ICO) has indicated that covertly recording children is likely to breach their Article 8 right to privacy. Moreover, these recordings are unlikely to be seen as promoting the child’s welfare – the paramount consideration in all children cases.
The FJC emphasises that judges should be cautious about admitting such recordings into evidence. Unless there is a compelling reason, their inclusion may not be in the best interests of the child and could prolong or inflame proceedings unnecessarily.
Professional recordings and the erosion of trust
Another focal point of the guidance is the covert recording of professionals, including social workers, guardians, therapists, and solicitors. While these recordings may reveal unprofessional behaviour or bias, they can also undermine the trust that is essential for meaningful engagement in family proceedings. Professionals who know they might be recorded at any moment may become more guarded, less candid, and ultimately less effective in their roles.
For this reason, the guidance suggests that professionals and agencies consider adopting clear internal policies about being recorded. In some circumstances, it may be appropriate to allow or even encourage open recording to ensure transparency and accountability. But this must be a deliberate choice, not a default expectation driven by fear or surveillance.
Importantly, courts are reminded that even where professional recordings are admitted, they should not be allowed to distract from the central issues in the case. A parent’s covert evidence that a social worker raised their voice may well be relevant, but it is unlikely to outweigh consistent patterns of behaviour or the broader welfare analysis.
Discretion remains vital
Legally speaking, the guidance reinforces the principle that the family courts retain discretion over admissibility. Covert recordings are not automatically excluded, but their probative value must be weighed against the potential harm they cause.
Judges will ask: is this recording reliable? Was it obtained lawfully? Does it help determine the welfare of the child? Was the other party aware they were being recorded, and if not, why not? The answers to these questions will often determine whether the evidence is allowed and how much weight it is given.
Lawyers are encouraged to raise these issues at an early stage, ideally before a final hearing. Late disclosure of covert recordings can derail proceedings and place the opposing party at an unfair disadvantage. Where parties intend to rely on such material, they should be prepared to explain its context and authenticity.
Clarity, caution and compassion
For lawyers, the guidance is both a tool and a challenge. It provides a clear set of principles to inform legal advice, but it also demands that we engage with the emotional realities behind the recordings. Clients must be advised not only about the risks of covert recordings from a legal perspective, but also about their broader implications for the child, the case, and the prospects of reaching resolution.
For families, the message is even more delicate. Covert recordings may feel like a way to “prove” one’s case, particularly in situations of high conflict or mistrust. But they are rarely a silver bullet, and more often than not, they complicate the legal process. Before pressing record, parents must consider whether they are acting in their child’s best interests, or merely reacting to pain and fear.
At Buckles, we understand that family disputes are deeply personal and often overwhelming. The instinct to gather evidence is a natural one, but in the family courts, not all evidence helps. We are here to guide clients through these decisions with sensitivity and care, ensuring that legal strategy never comes at the expense of a child’s wellbeing.
The Family Justice Council’s guidance marks a significant shift in the culture of family proceedings. It encourages a more reflective, less adversarial approach – one that recognises the limits of surveillance and the enduring importance of trust. As lawyers, we must meet that challenge with thoughtfulness, expertise, and above all, humanity.
