Family Justice Council Guidance on Covert Recordings in Family Law proceedings concerning children

The Family Justice Council (FJC) has published guidance for professionals and litigants who represent themselves on the use of covert recordings in family law proceedings. The guidance follows an increased use of covert recordings in family law proceedings and the need for clear guidance, and the protection and privacy of those subject to the recording.

In summary, the guidance:

• Outlines considerations undertaken by the court, referencing relevant laws and statutory frameworks involved with covert recordings in legal proceedings – including, the covert recording of children, professionals, and other family members.

• Explores the consequences and potential issues that may arise from the use of covert recordings in family law proceedings and provides guidance to promote consistency in the approach to these recordings.

• Emphasises the need for more guidance across professional bodies and organisations regarding the use of covert recordings in legal proceedings in the family justice system. 

• Analyses key considerations of the courts when assessing covert recordings in legal proceedings, such as the authenticity and completeness of the recording, probative value, and relevance to the case.

The guidance notes that the recording of professionals, either covertly or overtly by request, is a growing phenomenon that does not appear to be reflected in the policies of many professional agencies which serve the family court. The Council notes that, while such recording should not be necessary, there are occasions where these kinds of recordings have been demonstrated to have probative evidential value. It goes on to note, however, that there are circumstances when covert or overt recordings would undermine the validity of expert assessments, for example, in neuropsychological assessments, as it has been demonstrated to influence the quality of interaction and the performance and behaviour of persons under assessment.