Some past version of me wrote a blog post in 2019, which someone recently reminded me of. It said that the family court can’t order seizure of a device. Oh, I said glibly, I must have written that before the creation of the family court in 2014, because that definitely hasn’t been the case since then.
Except now I check, I wrote it in 2019. And the court definitely had those powers in 2019, by virtue of s31E Matrimonial and Family Proceedings Act 1984, as clarified by Re K, and FPR Part 20:
20.2 Orders for interim remedies
(1) The court may grant the following interim remedies –
(a) an interim injunction;
(b) an interim declaration;
(c) an order –
(i) for the detention, custody or preservation of relevant property;
(ii) for the inspection of relevant property;
So, what did I actually say?
The Family Court itself has no obvious realistic mechanism at its disposal to seize, download and analyse the contents of a digital device such as a smartphone in the absence of a criminal investigation in the course of which the police decide to (and are able to) secure a device for download. The Family Court’s powers are simply powers of disclosure of material already obtained by the police…
That first bit isn’t quite right. It muddles ‘realistic mechanisms’ and powers. I went on:
…although the High Court has a power to order seizure of a device or records, there would inevitably all sorts of logistical problems with securing orders before data was destroyed or ‘lost’, identifying the person responsible for seizure of the device and persuading the legal aid agency to fund the download and analysis of the data. Realistically this is unachievable – if the police haven’t already done the legwork it ain’t gonna happen. And in most private law cases the legal aid rates are already unsustainably low (they are far lower than care cases), making the idea of an advocate trawling through tens of thousands of pages on the off chance for no fee very unappealing – and arguably even more unattractive for a privately paying client. Even in care cases there is no fee for this work, but the hearing fees are less awful than in private law cases.
In my defence, I *think* I was talking about logistics as much as law, and may have had in mind private law proceedings where the practicalities and funding constraints applicable usually mean that what is theoretically possible is not achievable in practice – or perhaps even that this is rarely achievable for anyone except the local authority in public law proceedings (because usually such an application requires the provision of replacement phones, which only the LA has funding to be able to provide). But if that was what I thought, I didn’t express it clearly.
It is also possible, given the reference to the High Court, that I (wrongly) thought only a s9 had the power to do this, and the process of getting a case before a s9 might tip off or allow time for destruction or disposal of evidence. I suppose, being kind to myself, that I would not have been the only lawyer not to have been fully on top of the full scope and boundaries of the powers of the Family Court before Re K in 2024, and I rather suspect that the practice was probably that only a s9 judge would have dealt with a seizure application.
Trying to put myself back to 2019 (before covid so in that era where many judges and lawyers were still paper based), I think it was relatively unusual for phone data to be obtained as a result of a family court directing someone to give up their phone, rather than by consent or by means of seizure and onward disclosure by the police. It was also a period where the volume of phone download data was vastly increasing, and doing so faster than people’s IT skills or hard drives could manage, and none of this work was paid (that bit really hasn’t changed, it’s just got worse). It just all seemed a bit of an unmanageable mess.
Past me did wisely caveat what I had written with this:
“Below follows a blog post I wrote on the train back from a trial in Plymouth, highly stressed, badly fed and sleep deprived. It may be a little jumbled but I wanted to get it out before the moment passes, and I don’t have the time or energy to polish it, so please be forgiving…”
I clearly felt I needed to get it off my chest. I probably should have had a good night’s sleep instead. Now six years later, having just pontificated about owning your mistakes in my most recent post (and having spent a decade banging on about transparency), I feel compelled to get my error off my chest.
I suppose this is also an excellent opportunity to remind any readers that none of my blog posts are intended to contain legal advice. But insofar as they contain useful information I do like to try and make sure they are accurate and not misleading.
So, here you are, mea culpa.
You can read the original blog post here. Or maybe just read FPR 20 and Re K.
Police Disclosure into Family Court cases – including sometimes phone and device downloads