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The Law Society is also seeking counsel’s opinion as to whether the site’s modus operandi – removing references to firms in exchange for payment – amounts to extortion.

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I sense there will be more on this story in due course…

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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over a very long period, partially prior to the implementation of recent innovations, and that it may therefore be out of date.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).

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Commenting on the consultation, Lucy Theis QC, Chair of the Family Law Bar Association, said: 

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‘The protection of children is a concern to all of us. A robust legal aid system is vital to prevent damage to children – who are among the most vulnerable members of our society.  There is often no second chance when children are at risk of harm. 

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‘As Mr Justice Ryder stated this week, we are “at a crossroads in family justice”.  The publicly-funded family bar has prided itself on giving those with no voice the representation they need – yet the LSC seems determined to place the family justice system under yet more pressure.  

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‘We have a duty to protect the vulnerable; removing a child from its natural parents has rightly been described as one of the most draconian orders a court can make. The proposed severe cuts in funding for family barristers will deny those going through our court system the expertise they have the right to expect. These are the very people with most to lose and the very people for which legal aid was originally devised to protect.  The LSC risks undermining the system which they have the duty to administer. 

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The Bar Council’s recently published Discussion Paper on Legal Aid addresses these issues in a coherent way, which we hope will prompt sensible debate on this crucial issue. 

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‘The proposed cuts will make it financially unsustainable for experienced family barristers to continue to do this work and this important area of the law will fail to attract talented new entrants. This haemorrhage of talent and experience will be at the expense of the most vulnerable in society. This haemorrhage will be made worse if the Government seeks to implement ill-conceived plans to drive costs down further by the introduction of a single fee and competitive tendering.’

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Accordingly, the text of Coleridge J’s speech to Resolution last week can be found here in full: resolution-press080404. If you want to read some commentary you can visit the Laws of Love blog which beat me to it. All I need say is that everything Coleridge says rings true with my experience, is entirely sensible and ought to be (IS) self evident, particularly the short-sightedness of underfunding the family justice system and treating it like a poor relation.