Court of Appeal provides guidance on relevant principles and approach to directions for mobile phone extraction in family proceedings

Articles, News | Thu 13th Apr, 2023

All things being as they should be, mobile phone evidence will find its way into proceedings in the family court via the police, who will have seized and extracted mobile phone data as part of their criminal investigation. However, there are cases in which this does not happen and responsibility for obtaining highly relevant disclosure may fall to be considered entirely within the family proceedings.

In P, H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206, the Court of Appeal considered the Children’s Guardian’s appeal of a case management decision made during the course of a lengthy fact finding hearing in care proceedings. Findings were sought of sexual and physical abuse of the children, including “S”, allegedly perpetrated by the Respondent Father. The allegations of sexual abuse had been reported to the police who had conducted an ABE interview of S. However, the police had not conducted a mobile phone extraction as part of their investigation.

The order that was the subject of the appeal permitted the Respondent Father to instruct an expert organisation, “Evidence Matters”, to conduct a mobile phone extraction exercise in respect of a phone that had formerly belonged to S. The order provided for extraction of all messages and social media communications between S and the Respondent Father; S and her former boyfriend; and S and three of her friends (all of whom were under 18).

The Children’s Guardian, representing S in the proceedings appealed the order insofar as it provided for extraction and disclosure of communication between S and her friends. The Guardian submitted that the interference with the Article 8 Rights of the friends was such that consent of their parents should be obtained as a precursor to extraction. As a general submission, this contention was rejected by the Court of Appeal. However, the Court did allow the appeal to a limited extent, to restrict the timeframe from which the material was to be extracted and to provide for a “sifting” exercise to be conducted prior to disclosure to ensure only relevant material was provided.

In the leading judgement Lady Justice King considered the approach to be followed in what she considered to be “rare” cases in which the disclosure of mobile telephone extraction had not been provided via police disclosure.

In summarising the correct approach and relevant guidance Lady Justice King acknowledged the limits of the Family Procedure Rules in offering a complete framework and looked at how the Family Court was properly assisted by guidance and rules from outside the family sphere. In particular by:

(a) The Information Commissioner’s 2020 Report on “Mobile Phone Data Extraction by Police Forces in England and Wales” which acknowledged that it would not be feasible to obtain consent from all data subjects whose data may be contained on a mobile device.

(b) The Attorney General’s Guidance 2022 (and its annexes) applicable to police investigations where mobile phone material is to be extracted. The Guidance followed the ICO report (above). The Court noted that generally in practice the police do not seek consent of third parties but rely on a number of strategies including redaction and keyword search in order to limit the impact on the privacy of third parties.

Lady Justice King considered the general proposition that criminal law concepts had no place in family law, but concluded that this case brought into play precisely the sort of matter of process that the President had in mind in Re: H-N and Others (Children) (Doemstic Abuse: Findings of Fact Hearings) [2021] EWCA Civ 448 at [74], where a distinction was drawn between the import of criminal law concepts in determining substantive allegations, and procedural considerations. Lady Justice King concluded that it would be “inappropriate” for “the family court to adopt a radically different approach from that adopted by the police under the umbrella of the guidelines” when dealing with extraction of mobile phone material.

How does the Court propose that we should approach applications and directions for extraction and disclosure of mobile phone material?

(1) The court must determine relevance of the material. The question being, as set out in FPR rule 21.2, what is “necessary to dispose fairly of the proceedings”, bolstered, if necessary, by reference to Civil Procedure Rules PD 31B (which deals with “reasonable search” in the context of electronic documents and has no equivalent in the FPR). The focus will ordinarily be on the relevance of the material as a whole. The issue of relevance was not argued on appeal and the Court of Appeal did not interfere with the Judge’s finding, given her in depth knowledge of the case, that the relevance of the material was “obvious”. The issue of relevance will remain live following extraction of material as that material will need to be sifted to identify what is relevant and what is not.

(2) The Court must make case management orders which are proportionate. Proportionality is not only to be considered in terms of costs or delay (it being noted by the court that extraction is generally completed rapidly and inexpensively) but also in terms of competing article 8 and article 6 rights that are in play.

(3) Court must consider steps to protect rights of third parties. The court proposes an approach that draws on that adopted by the police under the AG guidelines, in particular:

(a) In common with usual police practice this will not include giving notice or seeking consent of third parties who have been the recipients of social media communications from the users of the mobile phone in question before material is downloaded or sifted as below.

(b) This will involve:

i. A conscientious sift of material for relevance once the material has been downloaded. This will usually be conducted by a lawyer appointed by the Local Authority and will identify material that “goes to the heart of the case”.

ii. Thereafter, careful redaction as described by the AG guidelines Annex D. This may include names of individuals not known to the parties and highly personal communications not relevant to the proceedings.

iii. Disclosure to the Court of only the sifted and redacted relevant material.

iv. Any dispute will be determined by the Judge as is routinely done in cases where there is, for example, disagreement as to extent of redaction of police disclosure.

(c) The Court acknowledged that each case would turn on its facts and that there may be cases in which the nature of the case and subject matter of the communication would exceptionally make it appropriate, following the Local Authority sift, to put the third party on notice in order to allow them to make representations.