If you’re dealing with a difficult co-parenting situation, or involved in family court proceedings, you might be tempted to secretly record a conversation.
You may feel it’s the only way to prove what’s really happening, especially if you’re worried about your child’s safety or how you're being treated.
In this article, Family Solicitor Katelyn Webster explains when covert recordings might be allowed in court, and what risks you should be aware of…
What is a covert recording?
If you have made a recording, whether its audio or video, without someone’s permission or knowledge, then this can be described in court as a covert (secret) recording.
Can I secretly record conversations or telephone calls as evidence in family or children proceedings?
In family or children proceedings, people sometimes consider secretly recording a conversation to support their case. Whilst it might seem like a good way to show someone’s behaviour, courts tend to discourage this evidence.
Covert recordings can be accepted as evidence in court, but they are often seen as problematic. The judge will often weigh up whether the evidence is relevant, fair and in the best interest of everyone involved.
There has recently been new guidance from the Family Justice Counsel in relation to covert recordings, which you can read here.
Can you use voice recordings in family court?
Yes, but only in certain cases. If the voice recording was made without the persons knowledge it counts as a covert recording.
Any covert recording including in person conversations and phone calls are subject to the same guidance and rules.
Can I record my child’s conversation with my ex?
Secretly recording your child speaking to your ex-partner is usually not a good idea. Even if the recording seems helpful, the court’s main priority is the child’s welfare.
The court will always consider the overall impact the recording will have on the child’s welfare before it can be accepted.
What do UK family courts recommend with recordings?
The Family Court recommend being upfront if a covert recording exists.
If you’ve made a secret recording let the court and other parties know as early as possible. This will give the court time to decide whether the recording can be used as evidence. As well as to set out any steps needed to deal with it properly.
Are secretly recorded videos admissible as evidence in family courts UK?
The Family Court retains full discretion over the admissibility of secret recordings. Allowing the court to determine whether the recording can be accepted as evidence. The court will assess the relevance, fairness and potential impact of the recording and is therefore assessed on a case-by-case basis.
The Family Court retains full discretion as to whether the recordings can be accepted as evidence. The court may look into the following:
- When and how the recordings were disclosed to the other parties.
- Whether full transcripts are required.
- The context of the recording and how it was made.
- The authenticity of the recording and any issues relating to editing.
- The usefulness of the evidence in proving or disproving a key point.
Every situation is different so the court is not limited to investigating the above.
What are the requirements of the video?
If you are applying to submit a covert recording to the court, it’s important the whole conversation is included. The evidence should not be a ‘snippet’ of the recording and must not be edited in anyway.
What are the legal risks of recording a conversation with my ex?
It’s not illegal to record a conversation with your ex-partner if it’s for personal use. Although using this recording in Family Court can raise legal issue.
You could face:
- Additional legal costs if the recordings authenticity is challenged.
- A civil claim if the person recorded believed the recording was used beyond personal reasons.
- Injunctive proceedings if the recording provides evidence of controlling or obsessive behaviour.
Can it harm my case if I record conversations with my ex?
Whilst a covert recording may be the only way to show your ex-partners behaviour, it can be viewed as largely unhelpful by the courts. The courts may then impose cost consequences on the recorder.
The court may also take a negative view on the recorder, if it appears that the recorder was provoking the other before they started recording. In these situations, the court may view the recording as an attempt to control the other party.
Do I need consent from my ex to use a recorded conversation with them in family court?
No, you do not need your ex’s consent to use a recorded conversation with them in family court.
However, you do need the court’s permission. The court may give your ex opportunity to dispute the recording, but it will be the court’s decision on whether to allow the recording into evidence.
What our experts have to say
“The court is cautious about recordings made without someone’s knowledge or consent.
However, they may be considered where there’s a strong reason, for example, to protect your interest or those of your child.
This is a complex area, so if you are thinking about using a covert recording, it’s important to get legal advice as early as possible.”
Specialist Family Proceedings Solicitors
Covert recordings in family proceedings are rarely straightforward.
If you’re considering using a covert recording or need advice about one made against you, get in touch with one of our experts. You can speak to a member of the team on 01202 499255 or by filling out the form.
The team is experienced in advising on these complex matters and will help you protect you and your children’s interests. We offer all new clients a free initial chat, giving you the opportunity to meet the team.
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