More often than not nowadays, in public law proceedings in which a fact finding exercise is to be undertaken, there is a raft of mobile phone data standing as evidence in the proceedings. This tends to be in the form of communications between the parents in the case, together with social media activity and internet searches.
Usually, in circumstances where there has been a police investigation into, for example, allegations of sexual abuse against a child, the police will carry out mobile phone extraction as part of their investigation, and the material is then disclosed to the family court via case management orders under the 2013 Protocol and Good Practice Model “Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.”
Occasionally it is necessary for the family court to seek mobile phone extraction itself, either where the police have not undertaken the exercise because an investigation has concluded with no further action, or the investigation is in its infancy, and it is felt that the speedier course would be for the family court to order the disclosure itself.
Such was the case in Re P, H-L (Children)(Mobile Phone Extraction) [2023] EWCA Civ 206.
The situation was complicated by the fact that some of the data sought was in the form of messages between the subject child (who had made allegations of sexual abuse against her father), and three of her friends.
Most unsatisfactorily, the situation arose mid fact finding hearing, when during the course of the child’s oral evidence, she referred to messages previously unseen by the court or the other parties. The father made an application under Part 25 for permission to instruct Evidence Matters to conduct a mobile phone extraction on the device formerly belonging to his daughter, and specifically for messages between the child and her father, her boyfriend, and three of her friends.
The guardian at first instance objected to the latter material on the grounds that it amounted to a disproportionate interference in the Article 8 rights of the three friends, and should not take place without the permission of their parents.
The judge allowed the father’s application, and directed that the extraction should span a three year period. Further, it was directed that the report from Evidence Matters should be disclosed in its entirety to the legal representatives for each of the parties.
The judge considered that the relevance of the material sought was obvious, and whilst there clearly would be an interference in the Article 8 rights of the three friends, such interference was proportionate on the limited basis the material was sought, in the confines of private family court proceedings.
The guardian appealed, and permission was granted on the basis that the case concerned an important issue regarding third party disclosure, and the judge at first instance may have fallen into error in sanctioning the procedure for obtaining and disclosing the material in the way that she did.
During the arguments before the Court of Appeal, it became apparent that the police do not routinely seek the consent of third parties when conducting mobile phone extraction, rather they seek to limit the impact by utilising key word searches, and redacting the material. There is also discussion within the judgment about the manner in which the Attorney General has updated her guidelines as recently as July 2022 in respect of criminal matters, so that such third party material is only to be obtained when necessary, and in the least intrusive way.
In reaching its decision, the Court of Appeal considered that this was precisely the type of procedural matter where, absent specific guidance in the Family Procedure Rules or Civil Procedure Rules, it should draw upon good practice in the criminal courts.
It concluded that that the judge was correct to conclude that extraction would not be a disproportionate interference with the Article 8 rights of the friends, and it was not necessary to seek the consent of their parents.
The appeal was however allowed to the extent that the extraction period of three years was too long, and should be refined to an eighteen month period. Further, the judge was wrong in ordering that the whole extraction report should be disclosed to all solicitors and counsel without any sort of sifting exercise being undertaken. The parties were in agreement that the local authority was the appropriate party to sift the report generated by Evidence Matters, and to redact it as appropriate.
Whilst this case concerns a relatively unusual set of circumstances, in that it concerns third party data, it is a timely reminder of the need to focus on relevance, proportionality and appropriate redaction when faced with mobile phone extraction data in a case.
