Cambridge Family Law Practice

The Family Justice Council has published new guidance on hidden recordings in cases involving children.

The Family Justice Council (FJC) is an advisory body made up of lawyers and other professionals working in family law, including President of the Family Division Sir Andrew McFarlane. They work alongside interested third parties, amongst them designated parents and family representatives. The FJC advises on potential reform and best practice in sensitive areas.

The newly published guidance is concerned with recordings made in secret by individuals, and not recordings made by local authorities, the police or similar public bodies. The FJC provides advice on the admissibility of such recordings in family court, alongside related issues – for example, in what circumstances the contents of any secret recordings could be published.

In his introduction to the new guidance, Sir Andrew explains that recordings of children have become an increasingly topical one in recent years, but guidance for judges and lawyers has been sparse to date. The new publication, he continued:

“…explores the issues and examines the consequences arising from the use of covert recordings by private individuals and sets out guidance that we hope will lead to greater consistency in approach.”

The President outlines the contentious nature of recordings made in secret, usually by estranged parents seeking to gain an advantage over their ex-partner following an acrimonious divorce or separation:

“Whilst some covert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children, and professionals, causing harm and often leading to concerns about the accuracy of the recording.”

Personal information considered during family court proceedings comes under the remit of the Information Commissioner’s Office, or ICO, which oversees privacy procedures. Their regulations, the FCJ stress, clearly state that:

“…you must not use children’s personal data in ways that have been shown to be detrimental to their wellbeing, or go against industry codes of practice, other regulatory provisions, or Government advice.”

Covert recordings may not be exempt from these requirements, the FJC warn, even when specifically made for playback in court, contrary to previous assumptions.

The new guidance is largely unchanged from a draft published in December 2022.

Read Covert recordings in family law proceedings concerning children here.

Adam Moghadas, one of the partners here at Cambridge Family Law Practice, notes that “Technology plays an ever-increasing role in family law court proceedings. It is usually unpalatable when this extends to the recording of children, either due to the sheer nature of this intrusive action, or – if such a recording can be justified for a child’s safety – due to the facts leading to its use in the first place. This guidance should be welcomed by lawyers practicing in this area.”