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, ‘Covert recordings in Family Law proceedings concerning children: Family Justice Council 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.
In the foreword to the guidance, the President of the Family Division of England and Wales and Chair of the Family Justice Council, Sir Andrew McFarlane, said:
“This has been a growing area for the courts to consider with little guidance available to judges or other professionals. This guidance from the Family Justice Council (FJC) 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.
“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. It is hoped that this guidance will encourage professional bodies and organisations in the Family Justice System to consider developing their own guidance on the use of covert and overt recordings.”
