Critical analysis of the Family Justice Court's covert recordings guidance

The Family Justice Council's new guidance on covert recordings in children's family law proceedings contains several questionable interpretations of UK data protection law, according to an analysis by data protection specialist Jon Baines. 

Baines argues that while the guidance correctly claims that processing such recordings for legal purposes would not fall under the personal or household use exemption contained in Article 2(2)(a) of the UK General Data Protection Regulation (GDPR), its reliance on the Information Commissioner's Office's (ICO) Age-Appropriate Design Code (AADC) is misdirected, given that its focus is to guide online services.

Baines highlights other inaccuracies, including the guidance's overemphasis on identifying a lawful basis for sharing footage and its incorrect assertion that failing to do so breaches the Data Protection Act 2018 (DPA18). Baines also disputes the suggestion that making a covert recording could constitute an offence under Section 170 DPA18, as this offence applies only when data is obtained without the controller's consent, and in such cases, the recorder would typically be the controller.