What have you done to my red book, dudes?

Since I started life at the bar a copy of the Red Book (Family Court Practice) has been my comfort blanket. Initially an old beaten copy of last year's edition given to me by someone in chambers who knew how tough it was to find the money to buy one when starting out (it was still expensive  then, around £400 I think). Later my very own...One year I had two when, having bought one, Jordans sent me a review copy meaning I could have one for home and one for chambers. And more recently, after years of the paper getting thinner and thinner and the book still getting heavier and heavier (particularly in the Munby years!) - I took the plunge and moved to the pdf version.

I found over time that on a holistic welfare analysis of the pros and cons of the red book, that the frequency with which I needed to refer to the red book had diminished to the point where it was just a massive pain in the backside (figuratively) and shoulder (literally) to lug around a book that I almost never looked at. It was still worth paying an exorbitant amount for a book I rarely used, because it was valuable when I did need it, but it wasn't worth carrying around in hard copy all year just because the paper version was marginally easier to navigate. So, paperless it was.

I was still largely working on paper at that time, and hated the pdf version at first, but persevered and managed to get the hang of its basic navigation. It wasn't the best even right up to last year, but then I have become used to working with a text book that, even in hard copy, always had an index that NEVER included the keyword I wanted to search for. As my pdf skills improved, most notably as I began to go paperless entirely last year, I reached a point where I could usually find the page I wanted faster than anybody else, using page numbers, key word searches and occasionally the irritating index - and I could extract the relevant few pages with a couple of taps on my ipad and ping them to judge or opponents. Making me the biggest keener in the room. Plus my shoulders didn't hurt any more from carrying the damned thing around on my back or in a suitcase.

So, I ordered it again this year....

It arrived about a month ago - later than usual because, I think, it was issued simultaneously with the hard copy, and the hard copy was held up by some mysterious print error which now seems to have been the faliure by someone to have included the index! Thus, those who are still on paper now have a huge red book to carry, AND the annoyance of having to also lug around a separate index, and to try not to lose or forget it.

But this year sadly the advantages of going paperless have evaporated. Without warning the publishers have moved the digital version across to epub format which means you can't just open the red book in a tab on your pdf reader. You have to open it in an entirely separate app (on my machine apple books) and if in court switch between one app and another to go between your red book and your bundle.

So, within an hour or so of download I'd given up on it, having established that :

  • the file was prone to hanging up my app on either the laptop or ipad, and only intermittently showed in the apple books library on both
  • the navigation was completely impossible to operate because the ToC was clickable but not easily scrollable, could not be furled and unfurled, the links didn't work reliably and the search function / page navigation / back functions don't operate at all the same as in my pdf reader (if they work at all). After multiple attempts I could not work out how to navigate back to page one, back to the index, or back to where I'd been a moment ago before accidentally clicking on something in the ToC whilst trying to scroll down to locate what I actually needed. It's not clear to me how much of this is specific to the way the navigation on the specific file is set up and how much of it is to do with the software it is required to run on, but either way its massively annoying.
  • there was no way of extracting a section of text to print or email to an opponent or judge
  • everyone else who had tried it was similarly disgruntled as far as I could tell from social media

I mulled it over for a week or so, tried it again a couple of times, but ultimately decided this was not something I wanted to pay 500 quid for. I'd also remembered in the meantime that our chambers subscription to lexis provides an online version of the red book, which, although a little cumbersome, is actually possible to navigate, download sections, and email to self etc. Now that wifi is (touch wood) pretty reliable in almost all the courts I visit, this seemed to me to strike a far better balance as between cost, benefit and irritation levels.

So I cancelled. Or at any rate I tried to. But I was persuaded, as it seems were a number of others, to wait for a pdf version of the book that they were apparently working on in response to negative feedback (seriously, the feedback must have been atrocious for them to do this!). It would be ready in a couple of weeks and the cancellation period would be extended. I was sceptical now I'd settled on falling back on the lexis subscription, but thought I'd wait and see.

Over the weekend I was sent another download. It is another epub document. It has all the same issues, and I can't see any difference. It ISN'T a pdf. I tried to use it to answer an actual live question a colleague had coincidentally asked me to test it out again. It took me almost ten minutes to work out how to get to information about change of name and the notes to s13 Children Act 1989, by which point the answer had already been found. In it's current form it is no use to me at all.

There is now a suggestion that in fact this was an error and the pdf version will not be coming until September. In the meantime the product I have is unusable and the lifespan of this £500 product will be reduced to 9 months (assuming that the publishers are back on schedule to publish in May 2020 as usual. There is (so far) no suggestion that the price will be discounted for those who don't cancel.

I will wait and see what comes but the longer I go on the harder it is to see how I could justify this sort of expenditure. I've written this post not just to have a pop at Lexis, but for two reasons :

  • firstly, I would be interested to know if others have had similar experiences or if I am being a bit of a failure in getting to grips with apple books. Maybe there are some easy work arounds that I've not found, although I'm not hugely inclined to spend much time up-skilling myself. Maybe there is some other piece of software available on both laptop and ipad that will transform the experience. If you do have useful practical tips to share please add a comment.
  • secondly, I suspect that there are lots of people who have been sent downloads which they've not really looked at as its the summer - they may be on holiday - and they may not have grappled with the 14 day cancellation period, may not appreciate the wider issues, and may not be aware that there is the prospect of a pdf version emerging in the autumn. As far as I am aware lexis have not sent any proactive general email to purchasers of the epub version letting them know what is going on - they have responded to those who have kicked up.

I think on both points the sharing of knowledge will hopefully reduce the amount of stress and duplication of time that we all spend sorting this out. We're all still on a learning curve on paperless working - even those who were early adopters. I've found twitter and social media really useful for cutting through barriers to doing this or that, as often someone can say 'oh that's easy, to solve x problem you just do y' - a solution that you would never find through trial and error or via google or a helpline. So, your thoughts, experiences and tips please.

I do close though by noting that I find it frustrating that the new epub version of the book was launched with a great flourish as new and improved without (as far as I can tell) any decent market research. It would have taken no effort at all to really find out about the users of this book to know that we are moving in droves into digital format, but we are working with multiple files in pdf formats and that the book was therefore already in the right format for the users of it (albeit that the navigation was less than brilliant). Big pdfs are cumbersome even when the navigation is set up properly, but there was plenty of scope to invest energy into improving the navigation and utility of the pdf book without switching formats. I'm afraid I think that Lexis have squandered a lot of the goodwill that Jordans built up over many years as the main family law publisher, by treating loyal customers in this way - I don't know but suspect that the rationale was probably something to do with moving to a format that better protects copyright, but whatever it was this will have hit revenues at Lexis (although of course even the revenues from the red book are a mere drop in the ocean for the big beast that is Lexis). It is such a shame because the actual content of the red book is second to none - and when you do need it it is invaluable. But, whilst I will make my final decision when I see they promised pdf version, it is very probably the case that this episode has nudged me into a realisation that I probably don't need to pay this much money for this product any more.

Book Review : Transparency in the Family Courts: Publicity and Privacy in Practice

This is a review by Rodney Noon of a book co-written by myself, Julie Doughty and Paul Magrath. It originally appeared in Nagalro's Seen & Heard (Vol 29, Issue 1, 2019) and is reproduced with kind permission. 

 

When selecting books for review, it has been my policy to filter the lists by asking, 'Is this a book which might justify a place on a practitioner's bookshelves?' Since receiving the review copy of this comprehensive exposition by my predecessor at the helm of Seen and Heard, the Chair of the Transparency Project and counsel at the Incorporated Council of Law Reporting for England and Wales, I have twice reached for it and twice found the answer. It is difficult to offer a practitioner's text higher praise.

The issue of transparency within the Family Court and Court of Protection is very current and subject to rapid developments. Since this book was published, we have seen the advent of facilities for legal bloggers to attend hearings int he family court. It would have been wonderful if everything could have been gathered up into a single, comprehensive piece of legislation and a dedicated part in the Family Procedure Rules, so that when an issue suddenly ambushed a practitioner from the dark corner of a file, they would know where all the rules were to be found. Sadly, that is not what has happened.

The rules are found scattered across a range of (Sometimes obscure) pieces of legislation, diverse parts of the rules and a range of judgments. It is a tribute to the thoroughness with which the authors have approached their task that they have managed to gather all the scattered pieces together and to form them into something resembling a comprehensible whole. It is no fault of the authors that there are places where the bits just do not fit. Pieces of different statutes point in different directions and two judges have taken different approaches to the same issue. It is to the authors' credit that they do not shy away from these problems; instead they explain the contradictions, describing the world as it is, not as we might like it to be.

This is not an academic text book. It is written for practitioners to tell them clearly where to find the right rules and what they actually say. I was particularly impressed by the helpful section about monitoring social media and how to get things removed.

Whether lawyer or social worker, we all need to understand the changes which are happening within the environment in which we practice. We would all be better practitioners for carefully reading this book.

Rodney Noon is a Solicitor-Advocate, Bradford, W Yorks.

 

By the way, you can purchase the book with a 15% discount by using the code BPTFC15 (see link).

 

Judicial Cooperation with Serious Case Reviews

....There won't be any (cooperation). Not least because Serious Case Reviews have been abolished with the enactment of the Children and Social Work Act 2017 on 27 April, which will (from a date yet to be fixed) abolish Local Safeguarding Childrens' Boards and thus, Serious Case Reviews. The President's Guidance : Judicial Cooperation with Serious Case Reviews is dated 2 May 2017. It IS current, but it won't be for long (assuming always that the Act is actually brought into force - though there is no particular reason to think it won't be once the General Election is over).

OK, it's a cheap point. LSCBs (Local Safeguarding Children Boards) and SCRs will be replaced with the Child Safeguarding Practice Review Panel and with Local child safeguarding practice reviews and Child Death Review Panels. I've yet to get my head around the detail of what the difference is (apart from the name), but the gist seems to be that the CSPRP is a National Panel which will look at "serious child safeguarding cases in England which raise issues that are complex or of national importance", and the LCSPRs seem pretty much equivalent to LSCBs insofar as they are a multi agency group tasked with working together to review "serious child safeguarding cases which raise issues of importance in relation to the area", with the CDRPs looking specifically at cases of child death (SCRs were tasked collectively with cases of serious harm or death).

Nonetheless, it seems fair to assume that the guidance, which will shortly relate to a defunct process, will apply equally to the new set up. I make that assumption because the points within the guidance are all points of basic, established principle and contain no surprises : in a nutshell : judicial independence innit. You can have all the judgments, all the documents the judge had and all the transcripts for your SCR - but judges will not be answering questions, undertaking interviews and senior judges will most certainly NOT be carrying out IMRs (Independent Management Reviews) on the work of their junior colleagues. That's what appeals are for.

This is pretty much what I said was the position when a group of us were discussing criticism of Hogg J for refusing to engage in the SCR arising from the death of Ellie Butler (See here). This document comes as no surprise, and is likely to have been prompted by the author of that SCR writing to The President specifically to raise this issue with him (as it was said at the time she had done).

One thing I do think odd though, is the implication that it would be effectively unthinkable for one judge to comment on the decisions of another :

  1. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process...This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.
  2. This position on SCRs has been followed by Sir Mark’s successors, Sir Nicholas Wall P and, in turn, by me.

This seems entirely sensible until one remembers that there has been at least one occasion where precisely this has happened : the Report to the President of the Family Division on the publication ‘Twenty-nine child homicides’ was prepared by Sir Nicholas Wall, then a High Court Judge, and he said this :

...Having discussed the matter with officials from the Department of Constitutional Affairs (DCA), Dame Elizabeth [Elizabeth Butler-Sloss, then the President of the Family Division] and I agreed, that in view both of the importance of the subject and the Select Committee’s proper concern about it, I should examine all the available court files in all the cases identified by WAFE in which there had been court involvement. I would then report – either to her or, as was more likely, to her successor...[he conducted a file review of various cases]

...a number of queries inevitably arose, and I wrote to the judges involved in the five cases, asking questions and inviting their comments...I have received complete co-operation from all the judges involved, who have been, without exception, both frank and helpful...My assessment of their conduct appears at the conclusion of the Part of the report dealing with the individual cases...I sent a copy of the draft to each of the judges involved for comment prior to finalisation. I have received responses from all five. None made any criticisms of the report or of my comments on the individual cases, and in general each was supportive of my recommendations to you.

As far as I know this is the only time that such a report has been prepared (it is worth noting that the report was prepared in response to the Womens' Aid 29 Homicides report, and that more recently in response to the more recent Womens' Aid 19 Child Homicides report and subsequent campaigning by Womens' Aid the President tasked Cobb J with a review PD12J). It is possible that there are other examples that I am unaware of.
I confess that I am struggling with the difference in principle between the Homicides report, which is to all intents and purposes an IMR, and the assertion that the judiciary don't scrutinise or critique one another's work except in the course of an appellate system. Granted, the Wall report was exceptional, but cases like Ellie Butler's are also pretty exceptional - so it begs the question why an exception couldn't be / shouldn't have been made there. In posing this question I'm not suggesting the answer, I'm simply highlighting the apparent inconsistency in approach and trying to work it through in my own mind.
For me, it would have been more helpful for the Guidance to have acknowledged this isolated example, and to have explained the distinction for us dummies. But I guess (ironically) that might have had to involve the criticism of the position adopted by another judge, so perhaps answer I'm seeking is to be found in the silence itself.
It is something I will give more thought to - does anyone else have an answer?