Tracking, abduction and the limits of covert evidence

In family law disputes, the fear of abduction which can constitute a wrongful removal (i.e, taking a child without any consent / court order) or retention (i.e retaining a child after a specific period of time, including an agreed contact period) is a real one. In a recent family law judgment, the issue of tracking and the covert evidence was a real issue. In Re BM (Children: Tracking Devices) [2025] EWFC 290 (B). This judgment provides a stark reminder of the consequences, evidentially of such devices being utilised.

HHJ Sharp considered the issue of tracking devices and commented at paragraph 3 of the judgment: “The Family Court, like any other institution, must deal with life as it is and not how it used to be or how it wished it was. Given the ease with which it can now be done it is surprising that the issue of surveillance, of covert location and tracking has not become a recurring issue and another problem for Family judges to have to grapple with. To the best of my knowledge this is not (yet) a widespread issue and its appearance in the proceedings before me has been a first, at least for me.”

The judge commented further at paragraph 40: ‘I unhesitating conclude that I cannot accept the parents’ evidence as to the tracking devices and therefore reject it. These devices were part of a wider plan to know where the children were either in terms of where they were living or from where they could be snatched. And probably both’.

Further, paragraph 43 outlines the relevance to the case: “To return to the present. Much time has been spent upon this issue and it has necessitated a separate judgment because it is, in my view, a matter of significant importance in these proceedings. Contrary to M’s assertion this was not a silly idea which was never going to get anywhere and which, on even the merest reflection, was not going to achieve anything. This was a serious effort to remove the children from foster care for the purpose of removing them from the protective care of the Local Authority and back into parental care which has, on an interim basis only, been found to be wanting and which poses a risk of significant harm for these children, if not actual harm. Abduction is a criminal offence for good reason, not least because it can have such a deleterious effect upon a child.” 

“Being snatched leads to an acute sense of confusion, of loss and of discombobulation, none of which are conducive to a child’s welfare. Children who are snatched for the purpose of being removed from the observation of welfare professionals are subjected to disruption, inconsistency of care, being kept to a regime of secrecy or separation which impacts upon their psychological welfare. Living off the grid or just laying low for a while is the dream of libertarians the world over but unplugging from professional services means that children’s health, education and welfare are all jeopardised.”

The judge was right about the consequences of child abduction and generally, the impact upon children being removed from their environment. The judgment does however require reading in full, for its context within those proceedings. The passage for the judge do raise important questions to remind individuals about remedies that do exist, pursuant to the law, to prevent unlawful removals. 

In private law proceedings, a party can apply pursuant to Section 8 of the Children Act 1989 for a ‘prohibited steps order’. An order if obtained, could have a penal notice attached to it. It can, and very much dependent upon the evidence, be obtained without notice or on notice. The question will be that of welfare pursuant to Section 1 of the Children Act 1989. Such an order can prohibit another parent from for example, removing a child from the other parent’s care, nursery, school etc. However, a prohibited steps order is not preventative. In certain cases, a party may seek relief from the inherent jurisdiction of the High Court. This is where Tipstaff orders can come into play (location, passport, collection orders, please see FPR, PD12D, Rule 7.1 – 7.4). These orders are powerful and can ensure there are automatic port alerts in place as well as requirements for Tipstaff to obtain the travel documents of the respondent and children. The orders also contain a number of powerful prohibitions. These orders are preventative. Mr Justice Cobb in Re P (Discharge of Passport Order) 2020] EWHC 3009 (Fam) at paragraphs 31 – 40 outlined the relevant purposes of such orders and also outlined: “Tipstaff passport order is a useful tool in the judicial armoury.”

There are however stringent criteria that must be followed for any party obtaining a Tipstaff order and it can be a complicated process. Breaching such orders will result in an arrest. However, the Family Court also has the ability to make port alerts, albeit they would not be Tipstaff port alerts. This is clear in the judgment of Mostyn J in A v B (Port Alert) [2021] EWHC 1716 (Fam). His lordship in that judgment went on to explain: “The most obvious example is the situation where the Family Court has made a prohibited steps order preventing parents from taking a child out of the country without the other’s consent or a court order. A port alert in such circumstances is simply acting as a supplemental safety net to ensure the efficacy of the prohibited steps order. It would be highly anomalous if the Family Court had power to issue a bench warrant to bring a parent who had gone on the run with the children before the court but did not have the power to issue a port alert order to prevent the children leaving the country.

I would not expect freestanding port alert orders to be made by the Family Court routinely. Such an order should only be made where the applicant demonstrates with clear evidence that there is a real and imminent risk that the children in question will be removed from England and Wales. When assessing that risk the court will not demand proof that it is more likely than not that the children will be removed; it will, nonetheless, still expect proof of a degree of probability not far short of that standard. It is important that applications for these orders are not made in reliance on evidence which amounts to no more than mere assertion or which is otherwise flimsy or unsubstantiated.”

Conclusion

Taking into account all of the above, the family court, as well as the High Court, possesses a number of options available for parents who are worried about abductions. The court is unlikely to look favourably on covert recordings / devices, in circumstances where relief exists. There has been a growing emphasis of the dangers of utilising covert recording for example, which is further cemented by the publication in May of the Covert Recordings in Family Law Proceedings by the Family Justice Council.