The digital age has transformed the way families live, communicate and, unfortunately, separate. Digital surveillance in divorce is increasingly becoming a recurring feature of modern family litigation. While courts have discretion to admit such material, the case law and judicial commentary make clear that its value is actually limited while the risks it raises are considerable.
Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, and other senior judges are consistently emphasising covert monitoring is rarely a route to justice. More often, it is a manifestation of mistrust, a tactic that escalates conflict or, in the context of abuse, an extension of coercive control. Under PD12J, courts are bound to take these behaviours seriously, particularly where they impact the welfare of children.
Digital surveillance during divorce can take several forms. It could be a secretly recorded argument, a screen-captured text message or evidence gathered from a home security system.
Whatever the format, family lawyers are seeing more and more parties arriving at court with a growing volume of material obtained without the other’s knowledge. While these recordings may appear compelling to the party who collected them, their use raises complex legal and ethical questions. More importantly, they can deepen mistrust between spouses, inflame and prolong proceedings, and, in some cases, lead to a continuation of abuse.
The rise of covert evidence gained by digital surveillance in divorce
The technology available to separating couples today would have been unimaginable even two decades ago. Smartphones make audio and video recording effortless. Domestic security cameras and smart doorbells often capture conversations within the home. Tracking applications, cloud accounts and inexpensive spyware provide opportunities to monitor movements and communications.
In the emotionally charged environment of separation, it is perhaps unsurprising that some individuals resort to surveillance.
Clients often believe that being able to prove a spouse’s behaviour – whether poor parenting, financial dishonesty or abusive conduct – will significantly bolster their case. In practice, however, family courts view such material with caution. This said, in England the family courts retain wide discretion in admitting evidence meaning covert recordings are not automatically excluded. In some circumstances they have been admitted to resolve factual disputes.
In Re B (A Child) [2017] EWCA Civ 1579, the Court of Appeal considered the covert recording of a foster carer by a parent. While it was deemed admissible, the court highlighted the serious ethical concerns it raised, cautioning against the casual use of such methods.
Similarly, in M v F (Covert Recording of Children) [2016] EWFC 29, Sir James Munby P condemned a father who had hidden recording devices in his child’s clothing. The court found the behaviour harmful, disproportionate, and ultimately damaging to the father’s case.
These cases illustrate that covert recordings rarely provide the decisive ‘smoking gun’ the parties that submitted them had hoped for. They are often incomplete, lack context and also risk shifting the court’s focus away from the child’s welfare or the substantive issues in dispute.
What are the legal concerns linked to covert recordings and digital surveillance in divorce?
Beyond evidential value, covert surveillance raises a range of legal concerns. Secret recordings may infringe Article 8 rights under the European Convention on Human Rights, which protects the right to respect for private and family life.
Depending on the method used, such surveillance could breach the Data Protection Act 2018 or amount to unlawful interception under the Regulation of Investigatory Powers Act 2000. At its most extreme, persistent monitoring may constitute harassment under the Protection from Harassment Act 1997. This could even expose the perpetrator to criminal liability.
Family courts are increasingly mindful of these extended risks. As such, they must weigh the potential evidential benefit of admitting covert recordings against the broader implications for privacy, legality and fairness.
For family lawyers, there broader professional and ethical challenges.
For solicitors, the SRA Code of Conduct obliges them to act with integrity and avoid encouraging unlawful or unethical behaviour. This makes advising a client to secretly record their spouse fraught with professional risk.
Even where material is lawfully obtained, practitioners must manage client expectations. A single recording, however damning in the eyes of the client, is rarely decisive. As observed in Re C (A Child) [2015] EWCA Civ 1096, context and reliability are paramount and the family courts are reluctant to base findings on what are really just fragments of evidence.
Is covert surveillance a form of abuse?
Perhaps the most troubling aspect of digital surveillance is its potential use as a tool of coercive behaviour. Victims of domestic abuse frequently report being monitored through spyware, shared cloud accounts or concealed recording devices.
For an abuser, surveillance is not about evidence but about power.
The judiciary is increasingly alert to this reality. As mentioned, Sir Andrew McFarlane has spoken out very publicly, including stressing the importance of recognising how technology can perpetuate abuse. In his addresses to the profession, he has repeatedly described covert monitoring as “a continuation of abuse rather than a neutral evidential exercise.”
This concern is reflected in Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Abuse and Harm). PD12J requires courts to consider the nature and impact of coercive and controlling behaviour, including technological abuse, when assessing harm to children and adults.
Where surveillance forms part of an abusive pattern, it is highly relevant to fact-finding and welfare determinations. In such cases, reliance on covert recordings may not only fail to assist the perpetrator but actively damage their credibility and restrict their future contact with children.
Looking ahead, as technology evolves it is feared these issues will only intensify.
Deepfakes, AI-generated communications, and increasingly sophisticated spyware are now everyday realities. Without legislative reform, much will continue to depend on judicial discretion and ethical judgment by practitioners.
Nevertheless, the principles remain constant. Family justice must prioritise fairness, balance and, above all, the welfare of children. Covert surveillance often undermines these objectives so for practitioners, the message is clear. Resist the allure of clandestine evidence, encourage clients to follow more accepted and legally supported strategies and always remain alert to the safeguarding implications of surveillance.
For separating families, the lesson is simpler still. Spying on a spouse during separation is far more likely to backfire than to deliver the outcome they seek so trust the legal advice and strategic suggestions your legal counsel makes.
If this blog has raised any questions regarding your situation or a case you are working on and you’d like to discuss the impact of digital surveillance in divorce or coercive control or domestic abuse with one of our experienced family lawyers, please contact us today.