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Apologies for the slightly ridiculous cloak and dagger approach. But know this:  there are no givens. Change is a comin’.

POST SCRIPT 5 AUG: Although I have not had time to post further, the Panel confirmed that they have no objection to wider discussion of the issues raised for discussion at the evidence session I attended. I will be posting shortly about that.

He’s right on the nail there as far as I can see. But I don’t see the other two parties as being exactly a family lawyer’s dream party either, so this won’t change my vote.

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The Lib Dems will also incorporate the UN Convention on the rights of a child into UK law, publish anonymised Serious Case Reviews and they make a number of generalised pledges about such things as the reduction of child poverty.

Thanks AC for the heads up.

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Although barristers are still not permitted to conduct litigation, and although many family cases will remain unsuitable for the instruction of a barrister without a solicitor being involved, in the right case a client may be able to significantly reduce her legal costs by instruction of a barrister direct.

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You can find detailed information on the changes and how they are likely to operate in practice in the revised Guidance material here on the LSB website. The Guidance indicates that cases involving children are likely to be unsuitable for this kind of instruction, but whilst no doubt this is correct there will be instances where it will work perfectly well, for example perhaps where a litigant in person wishes to continue representing himself in respect of a children matter but wishes to obtain a one off written opinion or guidance about the future of the case or how he should go about things, which may well be cheaper than retaining a solicitor or even simply asking them for ad hoc advice.

I am in a minority of family barristers qualified to offer these new services to date, and I expect to be dusting off my Public Access File in the coming months…

Although I have taken some time to post this since the story first broke I can find no fresher information than the Times report linked to above, so I assume there is no further announcement as yet.  Cutting it a bit fine eh?

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Last week a further press release was issued stating that Mischon De Reya had commissioned a ‘landmark’ study of 4,000 people (in fact the figure of 4,000 is made up of the original survey of 2,000 former subject children plus a subsequent and separate survey of 2,000 parents) which produced some ‘staggering’ results. The story made it onto Today programme, where Mischon De Reya were given a 3 minute slot during which the contents of the press release were rehearsed. The press release contained a summary of the findings of the research (although the findings set out related only to the to the second ’adult’ survey and therefore the percentage figures were of a smaller sample than was at first glance apparent). By lunch time the press release had reached the judiciary – I know this because the judge in my hearing quoted it as ‘new research’ and handed me a copy.

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The findings set out in the press release are, to adopt the author’s own terminology ‘staggering’. I won’t bother to set them out in this post, you can find the press release regurgitated almost verbatim by the BBC here. My initial reaction to these findings was to wonder what on earth the participants were asked and in what context in order to elicit the responses attributed to them – surely the ‘staggering 20% of separated parents’ who ’admitted that they had actively set out to make their partners experience ‘as unpleasant as possible’ regardless of the effect this had on their children’s feelings‘ had not been asked ‘Have you actively set out to make your partner’s experience a unpleasant as possible regardless of the effect this had on your children’s feelings?’ – but if not, what were they asked and how were these statistical results reached? The Government itself responded to the survey with the (fair) comment that the study appeared to include those involved in Children Act proceedings over a very long period, partially prior to the implementation of recent innovations, and that it may therefore be out of date.

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I think that it is legitimate to want to probe these assertions and the studies’ methodology in order to form a view about how reliable they are or what value they have in helping us to formulate policy. And rather than simply report the press release as I did in June, I wanted to be able to report and comment on this research in rather more depth.

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So I sent a request to Mischon De Reya’s PR department asking for a copy of the study that had been trailed so extensively. For my trouble I was sent a copy of the press release along with the following – enlightening – response from Sean at Consolidated PR [my italics]: ‘Many thanks for the interest shown with regard to Mishcon de Reya’s story out yesterday. I have attached the press release which contains all the findings from the research conducted as part of the campaign.’ Focus Sean: I didn’t ask about the story, and I’m not interested in the campaign. I asked about the research.

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I tried again, explaining that I was after a copy of the survey report itself. I was told that ‘Everything found within the research is contained within the press release therefore there isn’t any further information I can offer you.’ To me that suggests that there is no report, or none that the firm are willing to show the light of day. But perhaps I thought, that is too cynical, perhaps this is a misunderstanding of what I am asking for. So I tried again, asking for a copy of the ‘landmark study’. No reply.

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Abandoning attempts to communicate with the PR bods I sent a request directly to Sandra Davis, the solicitor in the Mischcon’s family department quoted extensively in the press release and interviewed on the Today programme, explaining my difficulty and asking again for a copy. I have yet to receive any reply.

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A few days later however I received a reply from Sean containing the same reprise: ‘The press release is the best place to find the information following the research carried out.’ He added: ‘Unfortunately I’m unable to share the research as it contains information we may wish to release in the future.’

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Of course we all know that at least part of the motivation for the commissioning of such studies is PR. And I am hardly suggesting that Mischon De Reya ought to have submitted their study to a peer reviewed journal. But aren’t we entitled to expect that there is actually something of substance behind the press release? I think we are. The press release is clearly designed to create the impression of substantive serious research – it says that the ‘landmark study…highlights the negative effects of separation on children and shows, despite the Act’s good intentions, in practice the law is not working’. It is however an impression which appears not to have been interrogated by the Today programme, the BBC website or any of the other reports of the story that I can find dotted about the internet (and perhaps more concerning was handed to me by a member of the judiciary who apparently had also taken the press release at face value and had quoted it liberally during a hearing). Indeed I swallowed whole the press release issued in June, without the critical eye that I should have – with hindsight - applied to it. But I smelt a rat when I saw the second press release and was struck by its similarity to the first.

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I’m not sure which annoys me most – the fact that the media appear to see no need to distinguish between a PR exercise and a piece of legitimate research, and have failed to make any attempt to examine the source material before publishing this story; OR the fact that a solicitors firm should seek to rely upon soundbites about undisclosed research – which they are not prepared to disclose to the genuinely interested – both in their own marketing and in making public statements about the direction in which government policy should move on such important issues. It is wholly contrary to the spirit in which family solicitors predominantly operate – ours is a world of full and frank disclosure, and that openness is generally accepted by all to be in pursuit of the welfare of children caught up in the system. This is precisely what the research purports to enlighten us on and yet Mischon De Reya appear to be treating it as if it were commercially sensitive material, to be exploited for gain or produced at a tactically advantageous moment of their choosing.

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Ah…if only Hildebrand v Hildebrand applied here – I sure would love to see that ‘research’. I’m not saying it’s not a valid piece of research – it is potentially a significant and important piece of work which could help inform Government policy. It may be, for example, that on analysis the Government’s dismissal of the survey on the grounds of its 20 year span could be properly interrogated and a subset of more current results could be extracted. I simply don’t know. We don’t even know who conducted the research - an academic? A lawyer? the PR Company? Frankly, it is hard not to see the reluctance to ‘share’ (as it is so benignly put by Sean) as anything other than a reluctance which undermines the validity of the claims made about the ‘landmark’ nature of the study. However, whilst I’m no statistician or researcher, I can offer some preliminary commentary based on the information I do have (Sean says it’s all I need after all):

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We don’t know anything about the methodology. We know that two separate surveys or studies were carried out (in spite of the impression that is given at first glance that there was one grand study of 4,000 people) but we don’t know if they took the same approach. We don’t know if the two sample groups overlapped or if they were representative (were they from the same family, same cases?). How were the respondents identified and chosen (interesting question since family proceedings are confidential) – were they taken from Mischcon de Reya’s former client list for example? Presumably the 2,000 former subject children group will have been predominantly drawn from cases where the children were old enough to be aware of the proceedings in order to be able to participate in the study, so not taking into account the impact of proceedings on the younger children. We don’t know if they were predominantly involved in relatively recent cases or older cases. We don’t know what they were asked or how they responded. We aren’t able to fully analyse the statistics to search for patterns or anomalies or explanations….

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You get the picture – without publication of the research itself this ‘research’ is nothing more than soundbite and certainly not evidence that any family law expert ought to be gaining kudos from. And that’s a shame because it may be better than I am able to give it credit for.

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I’m sorry if that’s harsh to Mishcons, but what else is one to say? If we were in court you couldn’t call it evidence and neither can it be called research unless we see it and it comes up to proof. If you put yourself out there to get the good PR you have to be prepared to be judged by the quality of what you have put out for public consumption.

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I’m hoping that Mischon De Reya do decide to send me a copy of their study. If they do I will post a further entry on the blog about it, and – if permitted - will share the study itself.
UPDATE 30/04/2010: see the March edition of Family Law which contains an article by John Eekelaar and Mavis Maclean (Oxford Centre for Family Law and Policy) on this research, raising similar concerns to those I have raised in this blog post ([2010] Fam Law 299).

Given that this is the type of arrangement which springs up where traditional sources of funding are unavailable because of the unpredictability of a return on investment, this tells us something about the lack of legal certainty available to litigants in this area of law.

Still, its a problem most of us will never have. For most of us legal certainty means the sure knowledge that our fortune is so small it is scarcely worth the legal fees. I wish my spouse or I were wealthy enough for hedge funds to be interested in taking a punt on one of us should we ever fall out. You’ll excuse me for being such poor company – I’m still getting over the disappointment of having had four numbers in Saturday’s draw only to find that my other half had read out the numbers for Wednesday’s draw. Does that count as grounds for divorce? Can I run it as conduct? Anyone fancy my chances?

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Of course the mere fact of her acquittal is in itself not enough to secure the return of the children. The family court within care proceedings will have heard evidence, including medical evidence, and most likely made a finding of fact that she was more likely than not the perpetrator of the non-accidental injuries to the child. In order to secure a return of her children she will have to go further than persuading the court that the evidence is insufficient to be satisfied of her actions to the criminal standard – she will need to persuade the court that the new evidence she seeks to rely upon is such that the balance of probabilities now falls in her favour. It is quite possible that whilst evidence is insufficient to secure a conviction in criminal the same evidence can be sufficient to satisfy the lower standard of proof in civil and family proceedings. And before the court will re-open the findings made in the family case it will need to be persuaded that there really is important new evidence that may well undermine the findings.

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It is impossible to tell from the reported material whether any of this is likely to happen, but one thing is for certain – seeking the return of children in these circumstances is a road fraught with potential difficulties even if one is armed with an acquittal. And even more so if the children have already been adopted.