With the growing use of technology and technology becoming widespread and easily accessible by many, one of most common issues that arise during Children Act Proceedings is the use of recordings.
What is a covert recording?
A covert recording according to the latest guidance is when someone makes a recording without the knowledge or permission of someone, whether they are a professional, an adult, or a child. It can refer to both audio and video recording.
Why do parents typically make covert recordings?
It is understandable why parents use digital devices to record others. It is predominately intended to act as evidence in the Court case moving forward. For example, if one parent is making allegations against the other parent that they pose a risk of harm to them or the children, parties often wish to seek reliance on a recording as evidence of that allegation, particularly where there are allegations of domestic abuse involved. Parents may also record the children as evidence of their wishes and feelings, which they believe can be used in the Court proceedings moving forward to strengthen their case.
The impact of covert recordings on children
The Family Justice Council in May 2025 in consultation with the Family Justice Young People’s Board have undertaken research into the effects of secret recordings on children. Young people in the consultations have often felt feelings of betrayal and discomfort and have raised the issue about manipulation of the recordings – they see the secret recordings as a breach of trust and violation. They have highlighted that the children often believe that their comments have been taken out of context or be staged in an attempt to extract evidence from them. It is certainly an issue that crops up in many Children Act cases that Gardner Leader and other professionals deal with.
Guidance to the Court
Many parents will be surprised to hear that, their secret recordings made may not necessarily be relied upon in any Children Act case before the Court. Many parents express frustration that this is often the only clear evidence of the allegation made or the views of the child and it would be wrong for this to be ignored.
The Family Justice Council have therefore issued clear guidance to legal professionals and parents on how secret recordings will be used in children proceedings moving forward.
The issue of secret recordings should be raised at the earliest possible opportunity in the proceedings and early legal advice should be sought by the parent seeking reliance on the recordings. In particular, the Court will need to grapple with:
- The method of disclosing the recordings (i.e. will a transcript need to be provided)
- Establishing how the recordings came about
- Establishing the authenticity of the recordings (i.e. whether they have been edited or manipulated)
- How the recordings impact the welfare of the parent or children who are the subject of the recordings.
However, the Court’s key consideration is whether the recording is likely to be relevant to the welfare decisions that the Court will make in relation to the children – will it be helpful to a Judge dealing with the case before them.
Guidance to Parents
The issue of relying on secret recordings as evidence in Children Act proceedings is complex. Much will come down to how relevant the content of the recordings are to determine what outcome is in the best interests of the children involved. The guidance provides a stark reminder to parents that central to all these issues are the children and what is the best outcome for them.
It is important for parents, who wish to rely on secret recordings in any Court proceedings, to take legal advice at the earliest possible opportunity to understand whether those recordings are likely to be relied upon as evidence in the Court or not. Failure to raise the issue at the earliest possible opportunity is only likely to lead to a delay and further costs in trying to resolve the issues between the parents for the sake of the children.
How we at Gardner Leader can assist
At Gardner Leader, we can assist in providing parents with advice on arrangements for children following separation and in particular, complex the impact of secret recordings in any Children Act proceedings issued. Should you require any assistance, please contact Rosie Deller or any of our Family Team who will be able to further assist you.