The world has seen a significant growth in the availability of affordable and easy-to-use GPS tracking devices, surveillance software, and recording devices in recent years, many of which can be downloaded in seconds onto the smartphones we all have in our pockets, or delivered to your doorstep by online services within days, if not hours.

Whilst the majority of parents openly use such software with the best intentions (what parent doesn’t want to be able to check on the safety of their child whilst they are out and about alone or make sure that expensive tech isn’t lost forever a as result of childhood carelessness?), there is a growing minority of parents showing that in the wrong hands, this technology can be used as a tool of abuse and control, particularly in the context of legal proceedings related to arrangements for children.

Such tools can constitute well known and widely available mobile phone apps with which the majority of people are familiar and use daily, or can take more deceptive forms, such as hidden cameras, maintaining access to household devices such as smart doorbells or baby monitors or in extreme cases that have recently come before the courts, secretly recording or tracking devices in the belongings or clothing of the other parent or even the children themselves.

This has inevitably led to an increase in the courts being asked to consider evidence obtained by these means as evidence within family law proceedings, particularly proceedings related to children. The question that many parents have is how the court will approach this, and the impact it may have on their case.

In Practice

Those wanting recordings or tracking evidence to be admitted often think that this evidence will be irrefutable proof of their position. Whilst in some cases recordings may have evidential value, and expert legal advice must be taken at the earliest stage if you suspect this may be the case for you, the paramount consideration for the court is a child’s welfare, and in reality, a court will very rarely consider the covert recording or tracking of a child to be in their best interests.  In fact, the court will often consider this behaviour to be actively damaging or abusive in nature, regardless of the motivations behind it.  

The production of such evidence can sometimes backfire on the party seeking to rely on it, which is another reason why it is crucially important to seek expert advice on the issue.

Additionally, there has long been a recognition by the court that recordings or tracking data show but a ‘snapshot’ of evidence and can easily be taken out of the wider context. Courts are alive to the possibility of a child being coached or asked questions in a leading manner for a recording.  

With the recent explosion in AI and deepfake technology, the veracity of recordings and tracking data produced in proceedings will inevitably come under more intense scrutiny than ever before.

These issues may minimise the value and trustworthiness of tracking data and recordings, and the weight that the court is willing to attach to them when considering all of the circumstances of a case and deciding.

What can I do?

The issue of tracking data or recordings in family proceedings is one to be treated with extreme sensitivity and caution. Whether you are the party wishing for such evidence to be admitted by the court or rejected in your case, our expert family lawyers can help you to navigate this issue. Please call or email us and speak to one of the team.