The Children App

Some time ago I was playing with my iPhone, wondering what apps I could justifiably claim as tax deductable, when I chanced across the Child Law App published by Stroika and subtitled ‘The Pocket Lawyer Guide to Child Law‘  (at the time of my download this pocket lawyer guide was listed on cantaffordalawyer.com as one of their ‘Pocket Lawyer’ series, created on their behalves by pixidapps.co.uk, but it has now mysteriously disappeared from both websites). Since it came at the negligible price of 59p I thought I would install it on my phone for the purposes of reviewing it at some later date. Finally, I have got round to posting about this.

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Contrary to the pre-download blurb, my opinion is that the Child Law App is difficult to navigate and not at all intuitive (which I have to say is an impressive achievement for an iPhone app). It seems to be essentially based on a relatively dense paper format, using chapter headings and sub headings as navigation and indexing and adding a pretty basic  search function. It has dimensions which would be more appropriate for a book than the shape of an iPhone screen meaning that by the time the text is large enough to read it is running off the side of the screen, even when in landscape mode.

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The pre-download info suggests this app contains ‘invaluable information for every parent’ and that it will be ‘of great assistance to anyone working with children, family lawyers and law students’.  But having looked at it I don’t really know who this app would genuinely benefit. Not legal professionals who one would hope had learnt all the basic information in it before resorting to desperately scrolling through an iPhone app in the court toilets for salvation. Not litigants in person, who would find it inaccessible and not easy to apply to their own circumstances. This type of information has it’s place, but it’s not the sort of practical information you’d want at your fingertips in mobile format for quick reference. But then that’s the trick with apps – you pays your 59p you takes your chances.

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I noticed that at the head of each page there is the heading ‘The Children Act 1989 Guidance and Regulations – Volume 1 – Court Orders’ which did not correspond to the title of the app, and I wondered to myself if this was simply a scanned version of a printed publication available elsewhere? I did not see it at the time I downloaded, but the pre-download information now says that this application ‘draws directly upon the guidance published by the DCSF – The Children Act 1989, Guidance and Regulations – Volume 1 – Court Orders‘. However a quick search on Amazon had already revealed as much when a quick go on this app left me with the distinct impression that this was no more than a pdf version of the some hard copy publication viewable on a very teeny weeny scale. What is noteworthy from Amazon is that the chapter headings in the table of contents are identical to those in the app, with the exception of chapters 4 and 5 which appear in reverse order. However the numbering used in the app is identical to the numbering in the original publication, albeit that the numbers appear out of sequence (i.e. the fourth chapter in the app is called ‘Chapter 5 – Secure’ which corresponds with Chapter 5 in the DCSF publication). Which rather suggests that this app does more than ‘draw directly’ upon the guidance. However, I’m not going to waste another £15 on buying the DCSF publication and comparing it word for word just to make a point (even if it is tax deductable) – even at 59p I don’t really think this one is value for money. I certainly can’t see anything in this app that one couldn’t get from the original DCSF book (probably in your local library) or free off the internet.

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It isn’t even an accurate statement of the current law (probably because it draws directly on a publication that is 2 years old), stating incorrectly that the route of appeal from the family proceedings court (magistrates court) is to the High Court, when an appeal now lies to the County Court (as of April 2009, 2 months before this app was even published). Routes of appeal might have been the one thing that inexperienced advocates or litigants in person might have wanted to quickly look up whilst at court, and it isn’t even accurate. Which for what purports to be a legal guide is a pretty fundamental flaw.

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Although this app is still for sale (search the apps store for ‘child law’) it is no longer showing as a product on cantaffordalawyer.com or on pixidapps.co.uk. I wonder if this is because they have run into copyright problems or for some other reason. Whatever the reason I wouldn’t waste your 59p on this. Beware of this app – or of any lawyer you see relying on an iPhone app for legal research!

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Best iPhone apps at AppStoreHQ

Reporting the Reporter

I have a current bugbear, but don’t get me wrong: I don’t want to add to the mass of negativity surrounding the dread word ‘social worker’. This post really only concerns the cases where the quality of s7 reports prepared by social workers in private proceedings falls far short of the expected standard. Most reports are adequate, many are much more than adequate. But there is a certain (how shall I say it?) patchiness.

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Even Forrest Gump knows that s7 reports are like a box of chocolates (you never know whatchu gonna git – are you going to get the truffle, or the orange creme nobody wants? Apologies for the naff analogy but it’s nearly time to knock off for the hols and a big tin of Christmas chocs is beckoning…) As for s7 reports, I’ve had a few orange cremes lately, and whilst I am the kind of social outcast who is happy to scoff all the orange cremes at the bottom of the tin (I love ’em), when it comes to duff s7 reports there is an important point of policy beneath that sparkly foil wrapping (Okay, enough of the analogy it’s making my teeth hurt).

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Occasionally a Judge will decide that a s7 report is flawed or that there is some other good reason to depart from a recommendation contained in it. Usually they do so politely and without hurting anybody’s feelings. Very occasionally a Judge will decide that a s7 report is so badly flawed that it warrants being spelt out in the judgment in terms which are quite strongly critical of the report writer. I have dealt with perhaps 3 or 4 of these in the last couple of years. Very very occasionally the Judge will be so unhappy with the quality of the s7 report that they will order a copy of the judgment be sent to social services to ensure that they are aware of the court’s concern (this can only happen with the court’s permission – parties cannot disclose the judgment themselves without permission). Incidentally, I’ve yet to deal with one of these cases where the media has been present, but I suppose it is only a matter of time before a similar case is identified by the media and permission given for it to be reported.

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In most of the cases that I have dealt with where a judgment has been highly critical of an unsatisfactory s7 report that report has been prepared by social services: by a social worker who may or may not be experienced but who has very little experience of private law work or of s7 reports (in one case a CAFCASS report was prepared by a sandwich year social work undergraduate on a work placement at CAFCASS). Clearly this is nothing like a statistically valid sample, but my sense is that (for better or for worse) the organisational quality checks on reports may tend to be more rigorous within CAFCASS than elsewhere. Big generalisation, but that’s my sense. In some respects this should come as no surprise since it used to be the expectation (not so any more since CAFCASS has ground to a halt) that most s7 reports were produced by CAFCASS as a matter of course – its what CAFCASS DO, and its more of a sideline for social services. In recent times of course the courts have been forced to fall back on social services to prepare s7 reports where CAFCASS cannot, and no doubt this is an additional pressure on often reluctant Local Authorities who would frankly rather be focussing their resources on child protection and on actual or potential care cases.

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If my experience is representative a s7 report from social services will typically be comparatively cursory. Sometimes it will be a slender report that has an air of ‘Yep, current situation looks fine, now can I go back to my child protection caseload?’ to it. Concerning features I have noted from time to time are reports which

  • substitute inappropriate criteria for the welfare checklist (safeguarding as buzzword, Every Child Matters Five Outcomes as glib justification for decision) and / or fail to properly utilise the welfare checklist as a tool for informing the s7 assessment and cross checking of recommendations, in particular a report which fails properly to take into account the significance of change (I think this is probably a by-product of a child protection mindset where the starting point in care planning is often of an already displaced child rather than a status quo with one parent?),

or are prepared by a reporter who

  • takes a minimalist approach to the scope of assessment or the breadth of the question posed (least possible work to achieve compliance with direction), or who
  • produces an oversimplistic rendering of the issues in the case, a flattening out of the subtleties (because if its not ‘care’ its not complex).

Again, I generalise. Again, I stress: this is not the norm, it is the extreme end of the spectrum. But I have seen it more than once. And it does worry me.

The reality is this. A publicly funded party will often have funding withdrawn on the filing of a negative report. That’s ok if the report is of good quality. If a report is solid then in the vast majority of cases sensible advice will be given to both parties, the matter will be compromised in line with the recommendations, and the parties and children can move on with their lives without waiting for a hearing date and without the stress of proceedings hanging over them. However if counsel advises the report is flawed and there is scope for it to be challenged at final hearing funding may still continue. Almost certainly in these circumstances neither party can be advised to settle – the outcome is still uncertain. One party has the benefit of a recommendation in their favour, the other of some arguments about a flawed report. A contest is inevitable. The matter will have to be listed.

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I hold the view that where a Judge has been strongly critical of the quality of a report (whether CAFCASS or Social Services) the interests of justice require that Judgment to be disclosed back to the Local Authority (or CAFCASS). It is essential that reports are of a consistently good quality and Local Authorities, CAFCASS and indeed individual report writers cannot be expected to improve quality if they are not told where they are going wrong. It may be unpalatable to potentially get a well meaning and hard working social worker into hot water with her manager (Although in practice the report has probably been seen and approved by a team manager and someone in legal before ever being filed), but consider these important reasons why judicial remarks about poor quality reports should be disclosed to the organisation responsible for it:

  • to ensure the court and the parties can be reasonably confident that the right outcome will be reached for their child and that the court will be put in a position of having a reliable basis upon which to reach a conclusion
  • to ensure that public funds are not wasted on unnecessary contested hearings (say, at least 1 day court / judicial time, solicitors and barristers costs etc)
  • to ensure that parents are not given false hope of an outcome in their favour or conversely are not unecessarily forced to endure the wait for a contested hearing that could have been avoided, with all the stress that goes with that
  • to ensure that delay is not caused for the child, either by increasing the need for contested hearings or by resulting in the need for addendum reports or even reports from alternative agencies to make up in the deficit in information in the first report
  • to ensure that the overstretched resources available are not further overstretched by taking up court time / prolonging cases
  • to ensure that where cases have with hindsight gone wrong parents can be satisfied that steps have been taken to ensure that such failings will be learnt from and will not be repeated

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At the end of the day, it feels good to have successfully undermined a flawed report through cross examination and to have achieved the outcome your client sought in the face of a negative recommendation. But the significance of these experiences goes beyond that child and that case – will the flaws be present in the next report prepared by that social worker? And what happens to parents who are not represented? It is a tough job to unseat a s7 recommendation and a judge has to be given sufficient basis upon which to properly do this, or risk appeal. I don’t think this is something most litigants in person would be able to do.

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So what happens if the quality of s7 reports declines as a result of an overstretched or failing system, and if simulataneously the availability of public funding or of counsel to take on such cases reduces as a result of public funding cuts? The wrong outcome for children, injustice for parents and families. So whilst it’s no panacea to send a critical judgment to social services or CAFCASS by way of feedback, I think it’s the least that can be done.

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The stark reality given the current state of CAFCASS is that Social Services are likely to be the primary providers of s7 reports for the forseeable future and it needs to be something that their social workers are trained and competent in, not just a sideline.

Soundbitten

In June I posted a short entry on the family law week blog about some research commissioned by solicitors Mischcon De Reya into the impact of the Children Act 1989 on children who had been involved in proceedings in the 20 years since its implementation. My source was a press release from the solicitors’ firm, summarising the research findings. I noted that the research itself had not yet been published, and that I would post a link to the full research when it was published. In fact I never had time to chase this up but it is now clear that the research behind the press release has not been published.

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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).