Re P, H-L (Children) (Mobile Phone Extraction)

A family court may order forensic extraction of mobile-phone and social-media material held by a party without first obtaining consent from third-party correspondents or their parents, including where the correspondents are minors. The court must establish relevance and manage extraction and disclosure proportionately, balancing fair-trial rights against third-party privacy. The usual safeguards are a confined time and subject matter, a post-extraction relevance sift, and careful redaction. Full disclosure of an unfiltered report is inappropriate where it contains irrelevant or highly personal communications. Notice to a particular third party may exceptionally be required after the sift. An appellate court may vary a case-management order to impose these safeguards while preserving relevant evidence.

The appeal arose during a fact-finding hearing in care proceedings concerning allegations by S, aged 16, that her father sexually abused her and physically abused J, aged 11. The police had not extracted S’s phone data. The father applied under Part 25 of the Family Procedure Rules 2010 for forensic analysis of S’s phone and social-media accounts, including communications with three minor friends.

HHJ Major ordered extraction and directed that the report be sent to counsel and solicitors, but did not require parental consent, restrict the three-year period, or provide a relevance and redaction sift. The Children’s Guardian appealed on Article 8 grounds. The central issues were whether third-party parental consent was a precondition to extraction and what safeguards should govern the resulting material.

1. Disposition. The appeal was allowed in part. The Court rejected the Guardian’s primary argument that parental consent from the friends was required before extraction. The extraction order therefore remained in force, subject to variation of its scope and disclosure arrangements.
2. Evidence control and relevance. Under rule 22.1(1) of the Family Procedure Rules 2010, the family court may control the issues, nature and presentation of evidence. Relevance was governed by rule 21.2, namely what was necessary to dispose fairly of the proceedings. Dunn v Durham County Council [2012] EWCA 1654 confirmed that relevance may include a genuine train-of-inquiry point, assessed by fact, degree and proportionality. Where the FPR lacks detail, assistance may be obtained from the more developed disclosure code in the Civil Procedure Rules 1998, including rule 31.17 and Practice Direction 31B.
3. Third-party consent. The issue was procedural rather than an importation of criminal-law concepts into family fact-finding. Applying the distinction explained in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, the family court could draw on police practice for digital disclosure. Prior notice to, or consent from, third-party recipients of messages, including parents of minors, would ordinarily be unnecessary where the device was held by a consenting party.
4. Privacy safeguards. The court had to balance Article 6 fair-trial rights against Article 8 privacy rights. Relevant material should be obtained by the least intrusive means, sifted after extraction, and carefully redacted. The judge erred by approving a three-year extraction period and directing disclosure of the whole report to counsel and solicitors without a relevance sift or redaction.
5. Practical directions. The relevant period for communications with the female friends and G was confined to approximately 1 April 2020 to 31 October 2021. The local authority was the appropriate party to appoint a lawyer to sift the report and redact irrelevant or private material. Any dispute about redaction could be determined by the judge. Exceptionally, a particular third party might be put on notice after the sift. The Court intervened despite the usual reluctance to interfere with case-management decisions, as recognised in Re TG (A Child) [2013] EWCA Civ5.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 206, the appeal was allowed in part. The order was varied as to the extraction period and the procedure for relevance sifting and redaction.
2. Croydon Family Court: HHJ Major ordered forensic extraction of S’s mobile device and social-media accounts on 15 December 2022 during the fact-finding hearing. The order did not require parental consent from third-party recipients and provided for disclosure of the report to counsel and solicitors.