Thinking of recording your ex? How UK family courts treat secret recordings

Covert recordings are any recording, audio or video, which is made without the express knowledge and permission of the person recorded. We live in an age where it is rare for anyone beyond their early teens to not have a phone and therefore a mobile recording device.

In recent years, family lawyers have seen a rise in clients presenting covert or secret recordings of their spouse or partner, and in some cases children, which they categorically believe proves their case. Perhaps due to the ease with which this can be done, insufficient thought is made when making a decision to record another person (which could mean committing a criminal offence). This blog considers how the Court will look at this type of material and how useful they really are.

How is digital evidence like phone recordings affecting family law cases today?

There are some cases where it is felt that a recording is the only way to prove a behaviour that is denied by the other parent, spouse or child. In fact, often the recordings do not prove anything as “bad behaviour” does not often happen in isolation. They can actually show conduct on both sides or shed a negative light on the person making the recording. This is because making secret recordings can demonstrate bad faith, and/or abusive and controlling behaviour in and of itself. This is because everyone has the right to a private family life and covert recordings therefore represents a serious breach of trust and privacy.

What stops a covert recording from being accepted as evidence in family court?

The Court must balance the potentially abusive nature of secret recordings versus the value of the evidence. There are therefore significant barriers to using covert recordings in family matters, especially if it relates to children. Technically, covert recordings are a form of hearsay evidence and are not automatically admissible in Court. This means that it is necessary to make an application to the Court in order to gain permission for your evidence to be considered by the Judge.

Before you get to this point, your solicitor will need to make sure that the material supports, rather than harms your case. This type of application should not be used for the purposes of mudslinging or badmouthing your ex. If a covert recording is being used against you, your solicitor will have to tackle it head on and consider what can be done to defend your position once it has been served.

The factors that affect whether a secret recording should be used are as follows:

1. Is the recording relevant to one of the disputed issues in the case? Is it needed to decide the case?
2. Is the recording reliable? Has software been used to modify or tamper with it?
3. What is the probative value? How does it help to decide the relevant facts of the case?
4. Is it proportionate to be admitted as evidence? The longer the recording or the number of recordings increases the time professionals spend on it and therefore the cost.
5. What is the context? For example, what else was going on in the room/vicinity if it is an audio recording.
6. Is the recording complete or a snapshot? For example, was it part of a larger event. Has it been selectively clipped or edited?

Is it ever acceptable to secretly record a child for use in Family Court?

Recordings of children are treated very seriously by the Court. Mr Justice Jackson on recordings in M v F (Covert Recordings of Children) [2016] EWFC 29 stated:

“It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way”.

In high conflict cases, parents can be prepared to go a long way to set up the other parent with a covert recording without considering the impact on their child. This could raise questions on motivations for a Judge. If a child is being questioned by a parent, this could be seen as an attempt to cross-examine their child without consent. If the child says something terrible has happened, the recording should be scrutinised to consider the circumstances of the disclosure and whether the highest standards for obtaining the best evidence for children were used. The factors to consider are as follows:

• Does the adult interviewing the child have an influence on them? If so, this may have a significant impact on the reliability of the evidence.
• Does the recording contain leading questions or imply “off record” guidance/coaching or adult terms or language?
• Have the Police or Social Services been informed? If not, why not?
• What were the circumstances of the recording and why did the disclosure come about while the child was being recorded?

Do I have to disclose a secret recording to the other side in a family case?

A recording that is detrimental and relevant to the case, must technically be disclosed to the other side. Your solicitor has a duty not to mislead the Court and if they hear or see something from a recording that contradicts your instructions, they cannot ignore it. This will be a relevant consideration for the Court in making a fair determination, this is whether it harms your case or not. If you do not agree to the recording being disclosed, then your solicitor may be conflicted in continuing to act for you. Clients need to be very sure their recording is helpful before bringing it into their legal matters.

Do I need an expert to prove whether a covert recording is genuine or edited?

The accessibility of technology to distort or modify recordings means that the Court may only be able to determine if evidence is authentic or fake if an expert is involved. It may be necessary for an expert to analyse meta data and the time stamps of the recording to establish the authenticity of the material. However, this will add to the cost and may not be affordable by the parties. It is likely that a lot of solicitor time and fees will have already been incurred by the time this stage is reached. If the parties are not careful, they may find themselves in satellite or additional litigation just on the issue of the admissibility of the recording.

Additional Frequently Asked Questions on Covert Recordings in Family Law

Will the court view me negatively if I admit to making a secret recording?

Courts can take a critical view of covert recorders, particularly if they appear manipulative or controlling. Even if the content is relevant, the secretive method of obtaining it can damage your credibility and raise concerns about your intentions.

What should I do before deciding to record someone during a family dispute?

It is important to take legal advice before making or using any recording. A solicitor can help you understand whether the court is likely to accept the evidence and whether there are safer and more effective ways to support your position.

Can covert recordings affect my child arrangements?

If the court believes that a parent involved a child in gathering evidence against the other parent or placed them under pressure, it may view this as emotionally harmful to that child. This can ultimately influence the court’s assessment of the child’s safety with that parent and thus affect decisions relating to child arrangements.

Are there alternatives to covert recordings for gathering evidence in family cases?

Yes. Written records, text messages, emails, medical notes, social media posts, school reports and observations from professionals are often seen as more reliable forms of evidence. A solicitor can guide you on the safest and most appropriate way to document concerns.

Can a covert recording breach data protection or privacy laws in the UK?

In some circumstances, yes. While making a recording for personal use is usually not illegal, sharing or relying on it inappropriately can breach privacy rights or data protection principles. Even if technically lawful, the court may still disapprove of the way the recording was obtained and take a dim view of that party.

Conclusion

There are cases where covert recordings can be pivotal to understanding a case and without them, justice would not be served. However, in many cases the recording may fall down in evidential terms on one of the criteria explained above. Therefore, a rigorous analysis of the covert recording needs to be undertaken before seeking to admit it in evidence at Court and in plenty of time before any hearing. The risk is always that the recording damages your own case or is not relevant, thereby wasting lots of time and costs on evidence that cannot or will not be used. The rule of thumb – proceed with caution!