Evidence for the family court: what helps and what backfires

How the family court thinks

The family court is not looking for a winner. In a children case it is deciding what arrangement is best for the child, and every piece of evidence is weighed against that question alone. In a financial case it is deciding what a fair division looks like on full disclosure from both sides. Evidence that shows the other party in a bad light is only useful to the extent that it bears on one of those two questions.

The court also forms a view of each parent or party from how they have conducted themselves, including how they gathered evidence. A judge who sees that one party has been covertly recording the other, or reading their email, will ask what that says about them. That view often matters more than the content of the recording.

Evidence the court gives weight to

• Contemporaneous records. A diary kept at the time, messages saved as they arrived, a log of missed contact with dates. Notes made at the time carry more weight than a recollection assembled for the hearing. The same principle governs how we keep surveillance logs.
• Independent evidence. School records, medical records, police reports, statements from professionals and from people with no stake in the outcome. Where an investigator’s report is used, its value lies in the investigator having no interest in the result and saying so.
• Documents obtained through disclosure. Bank statements, payslips and company accounts produced under the court’s own process, or ordered by it, are the foundation of a financial case.
• Public records. Land Registry and Companies House entries, planning applications, business listings and anything else that shows an asset or an income the other party has not declared. These are lawful to obtain and simple to prove.
• Observation evidence, lawfully obtained. Evidence that someone is living with a new partner, working when they say they cannot, or not caring for a child when they say they are, gathered by observation in public places and reported with times and exhibits. The court admits it where it is relevant and was obtained proportionately.

Evidence that backfires

Anything from the other party’s accounts or devices. Reading a spouse’s email, copying documents from their laptop or logging into their bank is unlawful, and the family court has been clear for many years that a party who does it cannot use what they found and must hand it back. The documents are excluded, the party is exposed to a claim, and the judge’s view of them is set. Our guide on phone records and messages explains the offences involved.

Covert recordings of the other party. The court can admit a recording made without the other person’s knowledge, and occasionally does, but it treats the making of it as evidence of the recorder’s conduct. Recordings of conversations with the other parent, and above all with the child, are routinely held against the person who made them. If you have already made recordings, tell your solicitor and let them decide.

Recordings of professionals. Recording a social worker, a Cafcass officer or a contact supervisor without telling them is treated as a sign that you cannot work with the professionals involved, which is itself a factor in a children case.

Involving the child. Questioning a child about the other parent, asking them to report back, or showing them evidence is treated as harmful to the child and damaging to the parent who does it.

Anything obtained by pretending to be someone else. Setting up a fake profile to befriend the other party, or asking a friend to do it, is pretexting and the court will see it for what it is.

Surveillance that is disproportionate. Following a former partner for weeks to prove they have a new relationship, when a single confirmed observation would have answered the question, invites a finding that the purpose was control rather than evidence, and a harassment allegation in reply.

What an investigator’s evidence adds

Where a fact matters and the other party will not admit it, an investigator provides evidence of it that is independent, lawful and documented. The questions we are most often instructed on in family proceedings are:

• Cohabitation. Whether a former spouse receiving maintenance is living with a new partner, which can affect the amount and duration of the order.
• Undisclosed assets and income. Property, businesses and trading activity that have not appeared on the financial disclosure form, found from public and licensed sources and reported so that a solicitor can put them to the other side.
• Fitness and care. Whether a parent’s account of their working hours, living arrangements, drinking or associates is accurate, where it bears on a child’s safety.
• Breach of orders. Whether a non-molestation or contact order is being kept, with dated and timed evidence.

The work is scoped around the specific fact in issue. Observation is arranged for the dates and places where the fact can be established, rather than run open-endedly, and every period is logged. The surveillance framework and the requirement of proportionality apply throughout; we refuse instructions where the purpose is to monitor rather than to prove a specific point.

Keeping it admissible

The court will look at three things about investigator evidence: whether it was lawfully obtained, whether it is relevant, and whether it can be relied on. The first two are settled at scoping. The third depends on how the evidence was captured and kept, which is why our reports state the methods and lawful basis used, tie every finding to a dated exhibit, record the chain of custody for each one, and are written so that a witness statement can be prepared without reworking anything. What you receive describes the structure.

Where the investigator is required to give evidence at a hearing, that is provided at the fees agreed for it.

Instructing through your solicitor

Most family court instructions come through a solicitor, and there are good reasons for that. The solicitor knows what fact the case turns on and can scope the instruction to it, the report is addressed to the solicitor and may be covered by legal professional privilege, and the solicitor decides how and when the evidence is deployed. If you are representing yourself, we can still take your instruction directly, and we will say clearly if what you are asking for is not going to help.

This guide is general information about the law of England and Wales as we understand it at the date shown at the foot of the page. It is not legal advice and does not take account of your circumstances. Before acting on anything here, particularly where court proceedings, a criminal complaint or an employment decision are involved, take advice from a solicitor. We are investigators, not lawyers, and we will say so if a question you bring us needs one.

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