Wednesday, 28 March 2012

Legal research - what's the point?

I'm at an interdisiplinary academic conference about shared parenting in Birmingham this week. Interesting stuff, but also some issues that it's important to clear up. In particular, someone said this afternoon that research ought to be able to tell us what care arrangements are best for the children of separated parents. Someone else said that research wasn't going to be able to do that, and the first person said: "Well, what's the point of all this research that we're doing then?"

I think that's a valuable question, and I thought I'd offer a short answer. It's important to understand what research can and cannot do, both for researchers ourselves and for those who want to make use of research in practical ways. One example of the potential confusion can be seen in a 2011 Court of Appeal decision called Re W (Relocation: Removal Outside Jurisdiction), which was a case about a mother's proposal to relocate to Australia with her children.

As I said in my blog on relocation a few days ago, family migration in separated families is a controversial and difficult topic, and there have been plenty of calls for more research to be done. The judges in the Court of Appeal are well aware of these calls for research, and in Re W Lord Justice Wall said this (para [129]):

"It further occurs to me that unless and until we have the research ... relocation cases will remain fact specific, the subject of discretionary decisions..."

So, this is where is all goes wrong. That's not what research is for!

Research is there to identify trends, risks and patterns, and to show that when people do or have x, y and z characteristics then they are more likely also to do or have A, B or C. Consequently, research might tell us that 90% of cases where x and y are present end up with A. But what research doesn't do is tell you what you should do in any one particular case, because research is about likelihoods and trends, not about any one situation. Crucially, research is there to help us to make informed decisions, but it cannot be used to make the decisions for us.

In other words, there is simply no research that could be done that would make individual relocation cases (or any other family law cases for that matter) not fact specific and therefore not the subject of discretionary decision. (In this context, a discretionary decision means one where the judge decides which of the parents' proposals is best based on the evidence presented in the case. This is different from most cases, where if you prove facts 1, 2 and 3 then you win. In cases about children, both sides make their case, but the judge still has to exercise judgment to decide the best solution.)

A good piece of research might show, for example, that 90% of children are harmed by doing X. However, no matter how clear that research is, it does not mean that X should never be ordered by a judge – the case before the judge might be one of the 10%. The judge can use the research as a basis for cross-checking the decision to order X, and to ask whether that really is the best decision; but if the facts of the case support doing X, the research is not a reason to refuse it. Cases are inevitably fact-sensitive and call for a careful determination by decision-makers who are aware of and informed by research evidence, but not constrained or unduly restricted by it.

So research is important, becuase it helps decision-makers to have a full understanding of the issues they are asked to adjudicate. However, research will never take away the need for careful, skilled judgment of individual cases. Research makes for informed decision-making, but it does not make the decision for you.


For more on the importance of research and its uses in family law, see my
article 'Reviewing Relocation?' in March's issue of Child and Family Law
Quarterly, which discusses the cases of Re W (Relocation: Removal Outside

3 comments:

  1. Great post. Am wondering what you think the implications of your points about the purpose and limitation of research are for a proposed presumption of shared parenting?

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    1. Thanks Lucy. I'm preparing a blog on the proposed shared parenting legislation, and trying to make some complex research easily understood. Just checking my facts with a colleague and then it'll be live. Hopefully later this week or next.

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