Court Of Appeal Provides Guidance On Relevant Principles And Approach To Directions For Mobile Phone Extraction In Family Proceedings

• Published date: 27 April 2023
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Mobile & Cable Communications, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Ms Kate Lamont

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...