There are few people who would argue that the development of smartphones and tablets in recent decades have presented us with incredible convenience.

However, for organisations like the British justice system, they pose something of a challenge, given the potential for these devices to impact the very important work which it does.

We have recently been reminded of the sizeable conundrum which they represent.

The Family Justice Council – a body established in 2002 by the then Lord Chancellor to advise Government on possible reform of practices in the family courts – has published new guidance in relation to the incidence of the use of covert recordings in cases involving children (https://www.judiciary.uk/wp-content/uploads/2025/05/Covert-recordings-in-Family-Law-proceedings-concerning-children-Family-Justice-Council-Guidance.pdf).

Council Chairman, Sir Andrew McFarlane, is President of the Family Division of the High Court – and, therefore, the most senior family judge in the country.

He has described how the issue of covert recording has left judges, lawyers and other professionals “grappling with the consequences of a new reality”.

Despite being a “growing area for the courts to consider”, he added that, until now, there has been “little guidance available”.

In the absence of specific rules about how to deal with such material, it has meant practitioners relying on individual rulings as and when they are published.

A glance back through case law shows that whilst some of the technology capable of making surreptitious recordings is new, the problem has been with us for a number of years.

Nine years ago, in fact, Mr Justice Peter Jackson was outlining the “serious consequences” of one parent recorded a child without its knowledge (https://www.bailii.org/ew/cases/EWFC/HCJ/2016/29.html).

In that case, a father recorded his daughter for more than a year before the practice came to light, even going so far as to place devices in his daughter’s school blazer.

The judge stressed that: “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.”

Even so, the problem has persisted. In my opinion, that is partly because the technology enabling such recordings is no longer the preserve of spies or private detectives.

Anyone with a mobile ‘phone now has at least a rudimentary grasp of how to make voice note or video recording.

We have also been involved in a number of matters in which parents have placed tracking devices in the clothes of their children and former partners.

When confronted as to why they have done so, some parents will argue that it was for purely legitimate purposes.

It can be difficult, therefore, for courts to determine the full context and assess what the most appropriate course of action to take is.

That is why the guidance from the Family Justice Council is so important.

For the first time, some very useful parameters have been established for judges, lawyers and their clients.

This is a valuable reminder that, as Sir Andrew McFarlane put it, “the secret nature of covert recordings can intrude on the privacy of parents, children, and professionals”.

Arguably even more important is the fact that it undermines the central concern of proceedings about children; namely, the well-being of the children themselves.

Echoing the sentiments of Mr Justice Peter Jackson, Sir Andrew has reinforced that the “covert recording of children rarely promotes a child’s welfare”.

Having published the guidance document, Sir Andrew and his colleagues on the FJC hope that it will encourage professional bodies to draw up their own protocols for dealing with recordings of this sort.

I would also hope that it makes our jobs easier by justifying why we have always insisted that clients contemplating covert recording do no such thing because of the potential complications.

As my colleague Sarah Manning has told the Daily Mail, instead of adding weight to a complaint about a former spouse or partner and strengthening their case, it can backfire (https://www.dailymail.co.uk/news/article-14921957/Parents-bug-kids-phones-secretly-record-spouse-custody-battles.html).

As the FJC has concluded: “The recording is a form of surveillance that can constitute a form of harassment, or be controlling or abusive” and be “highly relevant to the welfare determination” when determining arrangements for the child.

I would say that for those tempted to indulge in technological subterfuge to make their point, the warning could not be any clearer.