P, H-L (Children) (Mobile Phone Extraction)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Baker,Lord Justice Bean |
| Judgment Date | 27 February 2023 |
| Neutral Citation | [2023] EWCA Civ 206 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2022 2484 |
[2023] EWCA Civ 206
Lord Justice Bean
Lady Justice King
and
Lord Justice Baker
Case No: CA 2022 2484
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON FAMILY COURT
Her Honour Judge Major
ZE22C00050
Royal Courts of Justice
Strand, London, WC2A 2LL
Deborah Bryan and Elise Jeremiah (instructed by National Legal Service Solicitors) for the Appellants
Jacqui Gilliatt and Bibi Badejo (instructed by London Borough of Croydon) for the Local Authority Respondent
Alison Easton and Rachel Cooper (instructed by Taylor Rose MW) for the Respondent (Mother of S)
Sam Momtaz KC and Dominique Gillan (instructed by Blackfords LLP) for the Respondent (Father)
Hearing date: 7 February 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 27 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This was an appeal against a case management decision made by HHJ Major (“the judge”) on 15 December 2022. The order in question was made during the course of a lengthy fact finding hearing in care proceedings. By her order, the judge granted permission to the first respondent in this appeal (“the father”) to instruct an organisation called Evidence Matters to conduct a mobile phone extraction exercise in respect of a mobile phone formally belonging to his daughter (“S”). Thereafter, provision was made for Evidence Matters to file a report to be sent to counsel and solicitors (but not the parties) disclosing all messages and social media communications as between S and the father, S and her former boyfriend (“G”), and S and three of her friends (“the friends”) (all of whom were under 18).
The Children's Guardian (“the Guardian”) who represents S in the care proceedings appealed against the making of the order, although only in respect of the numerous communications between S and her friends. The Guardian submitted that the interference in the Article 8 privacy rights of the three friends was such that the court should obtain the consent of the parents of each of the friends before the material could be either downloaded by Evidence Matters or disclosed into the proceedings. This Court rejected that submission.
We have allowed the appeal, to a limited extent. We rejected the primary argument of the Guardian that the judge was in error in making an order for mobile phone extraction without having the consent of the parents of the friends. The digital analysis by Evidence Matters is therefore still to take place. The appeal is to be allowed however in order to vary the time frame to be covered by the extraction and to provide a method of sifting the material extracted before its disclosure to the parties. This process will ensure that only material relevant to the allegations, which tend to support or undermine the allegations of acts of a sexual or violent nature (towards S or J) made by S against the father, will be disclosed and that the privacy rights of third parties will be protected so far as possible, by a strict application of relevance, redaction and proportionality.
In order to allow the fact finding trial to be resumed without further delay, the Court gave its decision to this effect at the conclusion of the appeal hearing. What follows are my reasons for agreeing that the appeal should be allowed in part.
Background to the proceedings
The care proceedings concern two children: S, a girl now aged 16 and J, a boy aged 11 years. The allegations which are made against the father and which the local authority contend will support findings that the threshold criteria is satisfied, relate to alleged physical abuse of J and alleged sexual abuse of S between March 2020 and June 2021.
The allegations of sexual abuse first came to light on 21 July 2021 when S made a complaint to a teacher at school. On 22 July 2021, S participated in an ABE interview where she repeated her allegations. The following day, the father handed himself into the police, a warrant having been issued for his arrest.
The police did not carry out a mobile phone extraction from S's phone as part of their investigations. On the information before the Court, it is impossible to have an entirely reliable account of the history of, who and when any individual had access to, S's mobile phone. What is however clear is that, as of July 2021, S did not have her phone, it having been confiscated by her father or step-mother. S was also unable to gain access to her social media accounts as her step-mother had changed her passwords. S's father, it would appear, started to use the confiscated phone but he subsequently told the police that he has ‘no luck with phones’ and that he had ‘dropped the phone’ the week before his arrest which ‘broke it’, meaning he threw it away.
No attempt to access any phone or social media records which might relate to S and her allegations was thereafter made by the police, notwithstanding that it was known from an early stage that S's first accounts of the alleged abuse had been made through mobile phone messages. S told the police that the messages would be on her phone but that she had not had it in her possession since February 2021. The father also knew this to be the case and made reference to this fact in his police interview.
On 4 December 2021, the police notified S that they would not be pursuing criminal charges against her father.
Care proceedings were issued on 10 February 2022. Absent any significant police investigation, the family court was faced with considerable difficulties in obtaining relevant evidence. This Court was told that 10 orders had been made for police disclosure and that statements had had to be obtained in the family proceedings from a number of S's friends in the absence of any police investigation, consent to do so having been obtained from the parents of the young people. This unsatisfactory state of affairs meant that, 16 months after S had made her allegations, the court was still making fruitless orders for disclosure.
Shortly before a case management hearing on 17 November 2022, S produced information from her phone including a Snapchat video of the father and J. As a consequence, the judge made a case management order which included a requirement that: ‘If [S] is in possession of any further evidence on social media, particularly in the form of text messages, that is relevant to the issues before the court, these should be disclosed by [S] and served on the children's solicitor 4pm on by (sic) 23.11.22’. This was the only case management order which referred to the disclosure of messages. No further messages were provided by S before the fact finding began.
The fact finding hearing therefore began on 28 November 2022 without any police disclosure or detailed evidence by way of text or social media communications between S and G, who was then 17 and who had been her boyfriend in July 2021, or between S and various friends.
S gave oral evidence on 1 and 2 December 2022. She spoke about her separate communications with G, her father and her friends. She produced material from her phone including a video clip of her father allegedly mistreating J.
Inevitably, this disclosure from the witness box stalled the proceedings as consideration was given as to how to manage this new material. Following her oral evidence, S made contact with G who agreed to restore S to his contacts/friends. This allowed S to gain access to her communications with G which included allegations that her father had abused her. S also gained access to her messages between herself and her friends. The Court has not been told, and it may be unknown, how it was that S was now able to access all these messages and her social media accounts. However it came about, S spent many hours that evening in the company of the Guardian taking screenshots of various messages. Inevitably, the results, although done with the best of intentions, were unsatisfactory.
In addition to S's disclosure of relevant social media communications, the father attached to his witness statement dated 19.7.202, messages between himself and S retrieved from the discarded phone. Once again, it is not clear to this Court in what circumstances that had been possible, it having been suggested by the father that communications made on that phone were irretrievable.
Over the next few days, the parties and the court were given tranches of evidence relating to messages between S and G and her friends. On 9 December 2022 the father made a formal application under Part 25 Family Procedure Rules 2010 (“FPR 2010”) for permission to instruct Evidence Matters to carry out a forensic digital analysis of S's mobile device and social media platforms.
The application related to three separate tranches of material:
i) Communications between S and G. There was no opposition to this. Even though G was not (then) 18, the court and parties approached his position as having ‘implicitly’ given consent.
ii) Communications between S and the father. There was no dispute in relation to these communications.
iii) Communications between S and three identified friends, two of whom had filed witness statements. The Guardian objected to the making of an order in relation to these messages saying, firstly, that analysis of this material was a ‘fishing expedition’ on the part of the father and, secondly, that it reversed the standard of proof resulting in S having to disprove the father's case. Further, the Guardian argued, the examination and disclosure of this material was a gross interference with the Article 8 rights of the friends and disclosure was not a proportionate interference with these rights. The local authority and the Guardian submitted that the consent of the parents of S's...
To continue reading
Request your trial
-
Court Of Appeal Provides Guidance On Relevant Principles And Approach To Directions For Mobile Phone Extraction In Family Proceedings
...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 fi......