The news outlet Local Government Lawyer has rounded up two recent child protection cases which offer some important insights.
The first case, Re M (Adoption – notification of birth father)  EWFC 17, is about a birth father’s right to be notified before an adoption takes place.
The second case, Re P, H-L (Children) (Mobile Phone Extraction) (Rev1)  EWCA Civ 206, offers guidance on the correct procedure for gathering relevant mobile phone material in care proceedings.
The article and the analyses of both cases were written by Jennifer Frost, a barrister at St Mary’s Family Law Chambers, in Nottingham.
This is the background to the first case, Re M (Adoption – notification of birth father):
“A 21 month old boy (“M”) was placed with prospective adopters when he was a day old. M’s mother C was twenty-one when she gave birth to him, she was not in a relationship with the birth father. C did not wish the birth father to know of the pregnancy, of M’s birth, or to have any say in the very difficult decisions she made for M.
C says she was supported in her decision not to tell the birth father about M by social workers, who told her that the decision was hers to make, she did not have to disclose the birth father’s identity, and her wish for confidentiality would be respected. Both domestic and European law in this area stress the importance of engagement of the wider family in the adoption process.
Any request for an adoption that excludes a father or close family members should be closely scrutinised. The local authority could not compel C to disclose the birth father’s identity but did have a duty both to critically analyse C’s reasons for refusing to disclose, and if considered appropriate, to make its own independent enquiries as to the birth father’s identity.
The local authority did not explore with C the reasons for her refusal in any detail, did not take any steps independently to find out the birth father’s identity, and did not seek advice from its legal department as to how to proceed. On 11 March 2022 the prospective adopters applied to the Court to adopt M. The first hearing was listed on 6 June 2022 at which the court declined to make the adoption order, the Court could not do so without first having considered the question of whether or not the birth father should be notified.”
This is the background to the second case, Re P, H-L (Children) (Mobile Phone Extraction), which comes straight from the judgment:
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 friends must be sought and obtained before any work could be carried out by Evidence Matters.
You can access the full article and the analysis here.