Court of Appeal allows appeal - to limited extent - by Guardian over mobile phone extraction ruling in care proceedings

The Court of Appeal has allowed an appeal by a Children’s Guardian, to a limited extent, over a Family Court judge’s decision to give permission for a mobile phone extraction exercise in care proceedings.

The order in question was made during the course of a lengthy fact finding hearing. By her order, Her Honour Judge Major granted permission to the first respondent in the appeal ("the father") to instruct an organisation called Evidence Matters to conduct the exercise in respect of a mobile phone formally belonging to his daughter ("S").

Thereafter, provision was made for Evidence Matters to file a report to be sent to counsel and solicitors (but not the parties) disclosing all messages and social media communications as between S and the father, S and her former boyfriend ("G"), and S and three of her friends (all of whom were under 18).

In P, H-L (CHILDREN) (Mobile Phone Extraction) [2023] EWCA 206 the Children's Guardian, who represents S in the care proceedings, appealed against the making of the order, although only in respect of the numerous communications between S and her friends.

The Guardian submitted that the interference in the Article 8 privacy rights of the three friends was such that the court should obtain the consent of the parents of each of the friends before the material could be either downloaded by Evidence Matters or disclosed into the proceedings.

The Court of Appeal rejected the primary argument that the judge was in error in making an order for mobile phone extraction without having the consent of the parents of the friends.

However, Lady Justice King allowed the appeal in order to vary the time frame covered by the extraction, and to provide a method of ‘sifting’ the material extracted before its disclosure to the parties.

The Court of Appeal judge said: “This process will ensure that only material relevant to the allegations, which tend to support or undermine the allegations of acts of a sexual or violent nature (towards S or J) made by S against the father, will be disclosed and that the privacy rights of third parties will be protected so far as possible, by a strict application of relevance, redaction and proportionality.”

The care proceedings concern two children: S, a girl now aged 16 and J, a boy aged 11 years. The allegations which are made against the father relate to alleged physical abuse of J and alleged sexual abuse of S, Lady Justice King said.

The police did not carry out a mobile phone extraction from S's phone as part of their investigations.

Lady Justice King noted that on the information before the Court, it is “impossible to have an entirely reliable account of the history of, who and when any individual had access to S's mobile phone”. She added however that it is clear that, as of July 2021, S did not have her phone, it having been confiscated by her father or step-mother.

Care proceedings were issued in February 2022, and in the absence of any significant police investigation, the family court was faced with “considerable difficulties in obtaining relevant evidence”, said Lady Justice King.

The court heard that 10 orders had been made for police disclosure and that statements had to be obtained in the family proceedings from a number of S's friends. The consent to do so had been obtained from the parents of the young people.

In December 2022 the father made a formal application under Part 25 Family Procedure Rules 2010 ("FPR 2010") for permission to instruct Evidence Matters to carry out a forensic digital analysis of S's mobile device and social media platforms.

The Court of Appeal judge said the application related to three separate tranches of material:

1. Communications between S and G. There was no opposition to this. Even though G was not (then) 18, the court and parties approached his position as having 'implicitly' given consent.
2. Communications between S and the father. There was no dispute in relation to these communications.
3. Communications between S and three identified friends, two of whom had filed witness statements. The Guardian objected to the making of an order in relation to these messages saying, firstly, that analysis of this material was a 'fishing expedition' on the part of the father and, secondly, that it reversed the standard of proof resulting in S having to disprove the father's case.

In her analysis on 15 December 2022, HHJ Major concluded that the proposed analysis of the social media communications between S and her friends represented a proportionate interference with the Article 8 rights of S's friends on the 'limited basis that it is sought'.

Discussing the parties’ positions on appeal, Lady Justice King said counsel for the father maintained his position as at trial. He submitted that the disclosure was “highly relevant” and careful case management would give considerable protection to the privacy rights of any third parties including these minor children.

On reflection, he fully accepted that the three-year period provided for in the letter of instruction (upon his suggestion) was excessive, the Court heard.

The Guardian submitted that the interference in the Article 8 privacy rights of the three friends was to the extent that the court should obtain the consent of the parents of each of the friends before the material could be either downloaded by Evidence Matters or disclosed into the proceedings.

Counsel for the respondent local authority suggested that a more practical approach would be to give notice to those whose identities could be readily ascertained, enabling them to make submissions as to why their privacy should be protected in its entirety.

The Court heard that the local authority’s counsel also highlighted the importance of any disclosure being proportionate and accepted that “some sort of sift would be necessary once the report had been obtained from the provider” (in this case Evidence Matters); otherwise, she submitted, “not only would the volume of data be overwhelming, but swathes of irrelevant and potentially highly personal material would be disclosed to all the parties in the case”.

Lady Justice King said there could be no question on the face of it that the judge, having decided that the material on S's phone and in her social media accounts was relevant, was right thereafter in concluding that the 'search' of S's electronic data was 'reasonable' or, put another way, relevant and proportionate.

The question on appeal was whether she fell into error in carrying out that analysis and making that decision without having first obtained the consent of S's friends.

Lady Justice King said that in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, Sir Andrew McFarlane P ('the President'), having reiterated his observations in Re R that family judges should “avoid being drawn into an analysis of factual evidence based on criminal law concepts and principles”, went on to draw a distinction in the family court between importing criminal definitions, for example of 'rape', from issues concerned with process such as the conduct of a hearing or the scope of cross examination. In such circumstances, the family court could, he said, “potentially draw upon good practice in the criminal court”.

The Court of Appeal judge said: “In my judgement, the present situation presents the court with precisely the type of procedural matter the President had in mind; a situation where, absent any specific guidance to be found in the FPR (or the CPR) a judge can, and in this case should, draw upon good practice in the criminal court in order to inform the conduct of the family court proceedings.”

She continued: “In almost all cases where there is a fact-finding hearing, the family court will have access to and be relying on relevant material which includes mobile extraction material, all of which has been obtained by the police by reference to criminal guidelines and in particular the AG Guidelines 2022.

“It would therefore in my judgement be inappropriate in those few cases where the family court has to order mobile phone extraction, for the family court to adopt a radically different approach from that adopted by the police under the umbrella of those guidelines, issued as they were following detailed consideration by the Information Commissioner of the same privacy issues which arise in the present case.”

Lady Justice King stated that the court must conduct a ‘proportionality check’ and consider the competing Article 6 and Article 8 rights which are in play.

She said: “On the facts of this case, the parents of two of the friends gave permission for them to make witness statements with the attendant consequences of that permission. In my view, there can therefore be no question but that it is a proportionate interference with their privacy rights to permit the disclosure of relevant communications between them and S. To prevent such disclosure would be akin to refusing to permit source material in support of a witness statement to be attached as an exhibit to the statements.”

The Court of Appeal judge said that “careful case management” following the downloading of the material would ensure that following a sift by a lawyer appointed by the local authority, only “relevant and appropriately redacted material will be disclosed to the court” and to the parties.

She noted that as HHJ Major “rightly observed”, the parties are not interested in the wider communications between these or any other young people but only on 'what goes to the heart of the case'.

The Court of Appeal judge commented on the potential burden added to local authorities which are “already stretched to breaking point”, when such a procedure is carried out.

However, she said: “Contentious litigation in all jurisdictions is having to find ways to deal with the avalanche of material downloaded from mobile phones and social media sites. As already discussed, in the criminal jurisdiction this is by application of the AG Guidelines.

“Absent disclosure from the police, a procedure has to be found which ensures relevant evidence is admitted into the proceedings whilst achieving a balance between the Article 6 and Article 8 rights of all concerned.”

Lady Justice King said each case would inevitably turn on its facts. “It may be that the nature of the case and the contents of the communications exceptionally mean that, following the local authority sift, consideration does need to be given to a particular third party being put on notice in order to make representations should they choose to do so.”

Reverting to the case management decisions, the Court of Appeal judge said that HHJ Major was “correct to conclude that it was neither necessary nor a disproportionate interference with S's friends' Article 8 rights to seek the consent of their parents before mobile phone extraction could take place, regardless of whether they had filed witness statements or not”, adding that the judge was also right to order Evidence Matters to carry out a digital analysis of the material concerned.

The Court of Appeal judge concluded by allowing the appeal, to a limited extent, in order to enhance the protection provided to the privacy rights of S’s friends.

Lady Justice King said: “In my judgement, the judge fell into error only in respect of the structure she put into place in relation to the extent of the analysis and the management of the material thereafter. The judge approved digital analysis of material for a period of three years. As noted above, it is now accepted by all parties that in respect of the female friends and G, that period is too long and would be better defined by reference to what is known to be the relevant period more akin to 18 months, from 1 April 2020 to 31 October 2021. Further, the judge was, in my view, in error in having ordered that the whole of the extraction report was to be disclosed to all counsel and solicitors absent any sift for relevance or any redaction.

“Whilst the names of a number of S's friends are known to all the parties, there may be other children whose identities should be protected. It is also likely that there are highly personal communications between these young women which are irrelevant to these proceedings. That material must be removed before there is disclosure to the other parties. Absent the equivalent of the disclosure officer in criminal proceedings, the parties agree that the local authority is the appropriate party to sift the Evidence Matters report for relevance and to carry out a careful redaction of the material as appropriate.”

Lady Justice King said any dispute which may arise as to the extent of redaction can be determined by the judge in the same way as is routinely done in cases where there has been police disclosure and there is disagreement as to the extent of any exclusion of material or of redaction.

The Court of Appeal judge concluded that the appeal would be allowed to a “limited extent” in order to “enhance the protection provided to the privacy rights of [the child] S’s friends and any other hitherto unidentified third parties”.

Lord Justice Baker and Lord Justice Bean agreed.

Lottie Winson