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

Lady Justice King:

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