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

The Court of Appeal considered a case management order made during a fact-finding hearing in care proceedings which authorised a forensic mobile phone extraction by a private provider, Evidence Matters, of material from a phone belonging to S and specified social media accounts. The court accepted that the material was relevant to allegations of sexual and physical abuse and that the family court may borrow procedural safeguards from criminal practice (including the Attorney General Guidelines and the Information Commissioner’s analysis) when police disclosure is absent.

The court rejected the Children’s Guardian’s primary contention that parental consent of third-party recipients (three under-18 friends) was required before extraction, holding instead that relevance, proportionality, careful redaction and a lawyer-led sift can adequately protect third-party Article 8 privacy rights. However the Court of Appeal found error in the judge’s order in two respects: the temporal scope of the extraction (three years was excessive) and the disclosure procedure (the unfiltered report should not be disclosed to all counsel and solicitors). The appeal was allowed in part and the order was varied to limit the time period and to require a local authority lawyer-led relevance and redaction sift before wider disclosure.

Background and parties:

• This was an appeal against a case management order made on 15 December 2022 by HHJ Major in Croydon Family Court in care proceedings concerning two children, S (aged 16) and J (aged 11). The father had been permitted to instruct Evidence Matters to perform a forensic extraction of a mobile phone and social media accounts thought to belong to S.
• Appellants in this Court included representatives for S (through the Children’s Guardian). The local authority and the father supported the extraction in part. The proceedings arose after allegations of sexual abuse of S and physical abuse of J were made; police inquiries did not produce mobile phone extraction material for the family court.

Nature of the application and procedural posture:

• The father applied under Part 25 FPR 2010 for permission to instruct Evidence Matters to download and analyse communications between S and (i) her former boyfriend G, (ii) the father, and (iii) three of S’s friends (all under 18). The judge ordered an extraction covering January 2020 to date and directed the resulting report to be disclosed to counsel and solicitors only. The Guardian appealed only in respect of communications between S and her three friends, arguing parental consent should be required before extraction or disclosure.
• The Court of Appeal gave an expedited hearing (permission to appeal granted 24 January 2023) and handed down its decision on 27 February 2023.

Issues for the court:

1. Whether the family court should require the consent of parents of third-party minor recipients of messages before a mobile phone extraction is carried out.
2. Whether the judge erred in authorising a three-year extraction period and in ordering disclosure of the full extraction report to counsel and solicitors without a prior sift or redaction.
3. How the family court should approach extraction and disclosure where the police have not carried out the download.

Court’s reasoning and conclusions:

• The court accepted the judge’s finding that the material was relevant to the allegations and that, in the absence of police disclosure, the family court may sensibly look to criminal practice and guidance (including the Attorney General Guidelines and the Information Commissioner’s findings) for procedural safeguards when ordering extraction. Relevance and proportionality under FPR r.21.2 and the guidance in CPR PD 31B were applicable.
• The Court rejected the Guardian’s submission that parental consent of the friends was required before extraction. Instead, the Court held that it is ordinarily unnecessary to give notice to or obtain consent from identifiable third parties prior to extraction; protection of their Article 8 rights is achieved by a focused relevance sift and careful redaction after the download, in line with the approach used by the police.
• However, the Court allowed the appeal in part because the judge had erred in authorising an unduly wide three-year period for extraction and in ordering that the unfiltered report be disclosed to counsel and solicitors. The appropriate procedure is for a lawyer instructed by the local authority to carry out a relevance and redaction sift (with a defined, shorter time frame) and for any remaining disputes about disclosure or redaction to be resolved by the family judge.

Implications: the decision confirms that family courts can order forensic extraction without prior notice to third-party recipients where relevance is established, but must ensure proportionate case management safeguards (narrow time limits, lawyer-led sift, redaction) to protect third-party privacy and fairness.

Appeal allowed in part. The Court of Appeal upheld that a family court may order mobile phone extraction without prior consent from parents of third-party minor recipients where relevance and proportionality are satisfied, and that procedural safeguards from criminal practice (relevance sifts and redaction) may be applied. The judge’s order was varied to narrow the temporal scope of the extraction and to require a lawyer-led relevance and redaction sift by the local authority before disclosure to parties.

Appeal from Croydon Family Court (Her Honour Judge Major) arising from an order of 15 December 2022 permitting a forensic mobile phone extraction. Permission to appeal granted 24 January 2023. Hearing in the Court of Appeal on 7 February 2023; judgment ([2023] EWCA Civ 206) handed down 27 February 2023.