Interim restraint and property protection orders
Property, e-property, seizure and children proceedings
Recent case law and legal comment on-line raises the following practice questions (PQs):
(1) What powers does the Family Court have to order seizure of an electronic device on application in anticipated or continuing children (or other family) proceedings?
(2) What is the legal aid position – subject to a party’s means assessment – of such an application?
(3) Is a legal blogger (a solicitor or barrister, say) entitled to say: ‘none of my blog posts are intended to contain legal advice’?
I shall try to answer (1) above now, and – all being well – the remaining two PQs in the next few days and with as much legal advice as I can carefully put together.
In her ‘rant’ (or blog) of 13 May 2025 Pink Tape (PT, orse Lucy Reed KC) put forward the following thoughts and other comment:
Mea Culpa – a rather belated clarification: 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 [by which PT means Re K [2024] EWCA Civ 2, [2024] 4 WLR 9, [2024] 1 FLR 1261 (11 January 2024) (a judgment of the court consisting of Sir Andrew McFarlane P, Peter Jackson, Warby LJJ), and FPR Part 20].
‘Blog posts are not intended to contain legal advice’
PT then cites Family Proceedings Rules 2010 (FPR 2010) r 20.2(1). FPR 2010 Part 20 deals with ‘interim remedies’ in family proceedings, as I shall show shortly, and in relation to Senior Courts Act 1981 (SCA) s 34 (orders for production of documents or inspection of property, as set out below) and probably for production by non-parties (SCA 1981 s 33).
PT continues:
…although the High Court has a power to order seizure of a device or records, there would inevitably [be] 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)…
PT concludes:
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.
Whether any lawyer – even, perhaps especially, a well-known KC – is entitled just to say ‘blog posts are intended to contain legal advice’ will be dealt with in Part (3).
A reply to Pink Tape
Of PT’s 13 May 2025 rant I offered a reply to a couple of issues in the above texts. Of her assertion that her blog posts ‘are intended to contain legal advice’ I suggested: ‘I am not sure we lawyers have the luxury of such a disclaimer; but that is a subject for another day’ (and see my Part (3) post). As to the ‘seizure’ issue i continued:
… I think your better source for a family courts order for seizure of a device is Senior Courts Act 1981 ss 33 and 34 (both now applied in the family court: SCA 1981 ss 33(3) and 34(5)) and Matrimonial and Family Proceedings Act 1984 s 31J. Rather oddly FPR 2010 r 20.2 to which you refer only refers to s 34.
I concluded this bit of my post: ‘And I don’t entirely share your pessimism on legal aid.: an interesting point to analyse in relation to ECF legal aid funding…’. This will be Post (2).
The jurisdiction of the family courts was considered in Re K (above). In proceedings under Children Act 1989 (CA 1989) Part 4, two children – brothers aged 12 and 15 – were to remain with the mother (M) in accordance with the approved care plan. The father (F) failed to transfer to the local authority the parental controls over some of the children’s online accounts and electronic devices. It was said the brothers might have unrestricted access to the internet and to the father being able to track the children’s movements. M sought an injunction requiring that he provide the passwords for the accounts along with any relevant correspondence.
Statutory and common law sources
I offer the following with considerable diffidence: at least two of the Court of Appeal judges have massive experience of children law; representation at the bar was of three KCs (one a contributor to the red book and now a High Court judge: Garrido J) and five juniors; and this post is in part in reply to yet another KC. However, I fear the Court of Appeal did not have referred to it certain of the relevant statute law.
I will set out here a spectrum of property protection statute and common law based on the above brief facts; and refer to the parallel discussion of the parallel civil proceedings provisions in Civil Procedure (the white book: refs hereafter in bold). I wrote the commentary on the statutory sources in the Family Court Practice (red book: refs in bold italic) up to 2022; and I think that what I wrote is more or less untouched in the current (2024) red book (save for a reference to Re K itself at 2.987[1]).
The result of the available statutory and common law remedies is in two groups:
(1) Remedies available against non-parties (see italicised passages) where, in the case of s 33, they seem likely ultimately to be parties to proceedings.
(2) Remedies available against parties (see list in FPR 2010 r 20.2(1)) and Civil Procedure Act 1997 (CPA 1997) s 7 (search orders).
Statutory provisions for relevant interim remedies available to the Family Court
Matrimonial and Family Proceedings Act 1984 (MFPA 1984) s 31J says (as relevant here at 2.992):
31J Overview of certain powers of the court under other Acts
The powers of the family court include its powers under—
(a)section 33 of the Senior Courts Act 1981 (powers exercisable before commencement of action);
(b)section 34 of that Act (power to order disclosure or inspection of documents or property of non-party)….
Senior Courts Act 1981 ss 33 and 34 say (2.992[1]); and as amended as to references to family courts from 22 April 2014:
33 Powers of High Court exercisable before commencement of action.
(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say—
(a)the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and
(b)the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.
(2) On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court . . . the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim—
(a)to disclose whether those documents are in his possession, custody or power; and
(b)to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—
(i)to the applicant’s legal advisers; or
(ii)to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
(iii)if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.
(3)This section applies in relation to the family court as it applies in relation to the High Court.
The heading to SCA 1981 s 34, is inconsistent with SCA 1981 s 34(5) and MFPA 1984 s 321J(b) in that both provisions anticipate that s 34 can apply in family proceedings:
34 Power of High Court to order disclosure of documents, inspection of property etc. [in proceedings for personal injuries or death].
(2) [Section 34(1) deleted] On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—
(a)to disclose whether those documents are in his possession, custody or power; and
(b)to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—
(i)to the applicant’s legal advisers; or
(ii)to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
(iii)if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.
(3) On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say—
(a)the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings;…
(5) Subsections (2) and (3) apply in relation to the family court as they apply in relation to the High Court.
As can be seen:
(1) The drafter of MFPA 1984 s 31J above – per ‘powers of the family court include its powers’ – anticipated that these provisions upon setting up of the Family Court would ensure that ss 33 and 34 would apply to the Family Court (see ss 33(3) and 34(5)).
(2) The rules anticipated by s 33 are, for family proceedings, in FPR 2010 r 21.2 (3.911[1]: with commentary mostly, I think, drafted by me three years ago and more.
Search and freezing orders; preservation of evidence
For reasons I have never really understood search orders have now been made statutory (Civil Procedure Act 1997 (CPA 1997) s 7), whereas the form and procedural basis for a freezing order remains under common law (though referred to at FPR 2010 r 20.2(1)(f)). What is beyond doubt is that the former restriction on freezing orders being available only in the High Court has gone (with the original county court remedy regulations).
Search orders are now provided for by CPA 1997 s 7 and – in this case – only in the High Court:
7 Power of courts to make orders for preserving evidence, etc.
(1) The court may make an order under this section for the purpose of securing, in the case of any existing or proposed proceedings in the court—
(a)the preservation of evidence which is or may be relevant, or
(b)the preservation of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.
(2) A person who is, or appears to the court likely to be, a party to proceedings in the court may make an application for such an order.
(3) Such an order may direct any person to permit any person described in the order, or secure that any person so described is permitted—
(a)to enter premises in England and Wales, and
(b)while on the premises, to take in accordance with the terms of the order any of the following steps.
(4) Those steps are—
(a)to carry out a search for or inspection of anything described in the order, and
(b)to make or obtain a copy, photograph, sample or other record of anything so described.
(5)The order may also direct the person concerned—
(a)to provide any person described in the order, or secure that any person so described is provided, with any information or article described in the order, and
(b)to allow any person described in the order, or secure that any person so described is allowed, to retain for safe keeping anything described in the order.
(6)An order under this section is to have effect subject to such conditions as are specified in the order.
(7)This section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse or civil partner to proceedings for an offence or for the recovery of a penalty.
(8)In this section—
· ‘court means the High Court, and
· ‘premises’ includes any vehicle;
and an order under this section may describe anything generally, whether by reference to a class or otherwise.
Most of these provisions are covered procedurally by FPR 2010 r 20.2(1) and Part 18. Application can be made before issue of a claim (r 20.3: 3.889) and without notice (r 20.4 3.890 , as to which see also National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16, [2009] 1 WLR 1405 3.889[1]). These provisions are parallel with their originators in CPR 1998 Part 25. For example, r 20.2(1)(i) reference is made to SCA 1981 s 34 (3.888).
The white book includes copious notes on CPR 1998 r 25.1(1).
Guidance on jurisdiction of family courts
The Family Court (Composition and Distribution of Business) Rules 2014 (4.199 etseq and summarised in Re K) are statutory. These rules include r 21 which says ‘(1) The President of the Family Division may, after consulting the Lord Chancellor, issue guidance on the application or interpretation of Part 5 [ie on ‘Distribution of business of the family court’]’. Guidance has been issued in 2018 President’s Guidance (see below); but this does not include any obvious evidence that it complies with r 21.
In U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657 per Brooke LJ (as approved later by Lord Wilson in Re NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962, [2019] 2 FLR 1247 (30 October 2019)
[48] The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at para 21 [where I represented the appellant solicitors], May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 at [11], and Dyson LJ in Leigh v Michelin Tyre plc [2003] EWCA Civ 1766 at [19]-[21]. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong, they carry no authority at all.
The same, surely, applies to ‘guidance’[1] if not given in accordance with rules (ie per r 25 above), and especially if it is incorrect – as I believe it may be. A substantial part of the reasoning in Re K depends on the jurisdiction of a Family Court judge defined by President’s guidance (then of Sir James Munby P); namely President’s guidance jurisdiction of the Family Court: allocation of cases within the Family Court (sic: ie singular) to High Court judge level and transfer of cases from the Family Court to the High Court: 28 February 2018.
As I read it, the 2018 guidance is incorrect in certain respects (eg as to s 7 orders, and the level of judge to try them) and incomplete in others. I cannot see that any of the statutory provisions which give rise to applications in SCA 1981 ss 33 and 34 or CPA 1997 s 7 are catered for. A search order must be in the High Court (CPA 1997 s 7(1) and (8)) which may have applied in Re K. Beyond that where do SCA 1981 applications go as they proceed under FPR 2010 r 20.2(1) and Parts 18 or 19?).
What to be done in a case like Re K?
So, what could have been done in a case like Re K? I tread very carefully here. The facts available in the report are – perhaps necessarily – sparse. In the course of CA 1989 Part 2 (‘private law’) proceedings the judge had ordered a CA 1989 s 37 report and in the CA 1989 Part 2 proceedings proceeded to make a care order (CA 1989 Part 4). In the course of those children proceedings M applied that:
The Father shall by 4 pm on 30 June 2023 provide to the Local Authority the details of his Apple ID and password and thereafter shall provide all co-operation necessary to effect the transfer of the parental controls of B and A’s Apple ID accounts (including but not limited to forwarding immediately any account-holder authentication passcodes sent to any phone or e-mail address that he has, and forwarding any relevant e-mail or other correspondence from Apple to the Local Authority).
The judge refused to make that order saying she thought she had no jurisdiction. The Court of Appeal said she had and sent the case back to her. They commented (para [35]) that: ‘(1) The Family Court is a single, unified court within which almost all family proceedings are conducted;’ and ‘(3) Family business is distributed within the Family Court to the levels of judge ordained by the Rules, the 2014 Guidance and the 2018 Guidance’. A dispassionate observer might think Re K proves the opposite, certainly in respect of (1). That is a subject for another day.
The comments of the Court of Appeal included:
[37] The conclusion to be drawn is that judges of the Family Court should not be deterred from making incidental and supplemental orders that are beneficial and fair. They should approach the matter on the basis that they have the power to make such orders unless it is shown by reference to the Rules and Guidance that they do not. In this way, effective orders can be made in appropriate cases and delay, expense and duplication of effort can be minimised….
[44] … Far from needing a separate application to the High Court, the application was properly made to the Family Court in the existing proceedings. In the end, if the judge had asked herself the questions outlined above, she would inevitably have concluded that there was no obstacle to her deciding the application on its merits.
F was already a party to proceedings, so SCA 1981 ss 33 and 34 was not available once any of the CA 1989 proceedings had been issued. Were freezing or CPA 1997 s 7 (search) orders available, or even appropriate? I suspect so, as to surrender of the relevant electronic equipment and as to ‘property’ (see r 20.2(1)(c) below). Whether legal aid might have been available will have to await post (2). It may demand more expertise as to electronic devices and their product – I confess – than I possess sitting alone at a desk in rural Burgundy.
Are the statutory sources adequate – 44 years on – to deal with modern e property and documents?
Finally, others more expert than I, may – perhaps – say whether the statutory provisions I refer to above are adequate to cover inter familial domestic abuse and to relevant references to it in e documents or other property. Many of these provisions relate to a period (1981 to 1997) when the potential for electronic malign behaviour in families could not have been dreamed of. Bits of r 20.2(1) sound fairly ancient (thought rules do not, of course, define the law or define the common law). Even so, they might have been relevant in Re K. See for instance:
20.2 Orders for interim remedies
(1) The court may grant the following interim remedies – …
(c) an order –
(i) for the detention, custody or preservation of relevant property;
(ii) for the inspection of relevant property;
(iii) for the taking of a sample of relevant property;
(iv) for the carrying out of an experiment on or with relevant property;
(v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and
(vi) for the payment of income from relevant property until an application is decided;…
And, if the statutory provisions cannot cover protective remedies, can the common law fill any gaps? After all the Anton Piller order (Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12, [1976] Ch 55, CA) was originally a common law remedy. Now it is a search order (CPA 1997 s 7 and eg FPR 2010 r 20.2(1)(h): 3.888[4]). How far may the High Court judges go in their inherent jurisdiction?
David Burrows
21 May 2025
[1] Guidance per ICLR glossary
Guidance is a term used predominantly in three contexts: (1) statutory guidance, (2) judicial, common law or ‘gap’ guidance, (3) other judicially approved guidance.
· Statutory guidance is only slightly lower than a statutory instrument in terms of legislation. It is formal guidance delegated to be made by a Secretary of State (ie his or her staff) to deal with a particular aspect of work to be carried out by their department (eg Borders Citizenship and Immigration Act 2009 s 55(3); Children Act 2004 s 11(4)). It is not subject to approval by Parliament as a statutory instrument. Such guidance may go through various versions over time.
· Judicial guidance (or ‘gap’ guidance) is set out law reports. It provide examples of where High Court and higher courts judges have set out how the law or eg practice directions should be applied to supplement what is already summarised by the law (eg preparation of a written statement in civil and family proceedings where English is not a witness’s first language: NN v ZZ [2013] EWHC 2261 (Fam), [2016] 4 WLR 9, per Peter Jackson J).
· Judicially approved external guidance, eg on Judges meeting children in family proceedings (the Family Justice Council, April 2010); or as to the “forensic usefulness” of NSPCC guidance (‘Criminal exploitation and gangs’) per Hayden J in S v F [2025] EWHC 439 (Fam) (27 February 2025).