Shared Time Parenting After Divorce - What the Research Says

This post comments on the government's plans to legislate about parenting arrangements after separation or divorce. I talk about the research evidence and show that introducing a legal presumption that families involved in court cases should split their children's time between two homes is likely to be bad for most of the children involved.

Introduction:

The Government has recently announced that it intends to introduce legislation about parenting arrangements after the separation or divorce of parents, contrary to the recommendations of its own independent report. The aim, it seems, is to emphasise the importance to children’s well-being of having both parents involved in their lives after separation, just as we assume they are both involved if the parents are together.  

As Professor Liz Trinder of Exeter University wrote in a comment piece on the Guardian website in February 2012, that sounds perfectly sensible – but it’s important to keep sight of the big picture in order to see why some of the plans being proposed are a bad idea from the point of view of the children involved.

First, let’s clarify what this debate is about. So far as I am aware, it's a fairly universally-held view that, if it is safe, children should have a strong and on-going relationship with both of their parents regardless of the status of the adults’ relationship with one another. That being the accepted position, this isn’t really a debate about the principle that children should have strong involvement from both parents – it’s a debate about the practical ways in which that principle should be applied.

In this post, I explain some of the recent research that has been done into the working of the family court and the effects of different care arrangements on children’s lives. The aim of this is to demonstrate why changing the law to promote shared time for children of separated parents is a misguided idea that will harm children.

Family Law – Facts and Myths:

A lot of people know someone who has been involved with the family courts, either as a parent or as a child. Despite this, research consistently shows that only about 10% of separating parents go to court about issues to do with their children. The large majority of parents sort things out without help from the court, either entirely privately or with other assistance from professionals (usually family solicitors, who are skilled at negotiating and settling cases).

It doesn’t take much imagination to realise that many of the 10% who do end up in court are the most conflicted, the most bitter, and the most complicated cases. After all, these are the people who were unable to negotiate a settlement. Research shows that the cases that go to court have very high rates of domestic violence, drug and alcohol abuse, mental health issues and problems which often come close to needing intervention by social workers to safeguard the welfare of the children involved.

Despite these complications, the family courts adopt a strongly pro-contact position. They bend over backwards to promote relationships between parents and their children in the most challenging of circumstances, and have done their best to deal with the tricky problem of non-compliance with orders. (These cases are very complicated, because most of the ‘remedies’ that the law has impact badly on the children involved.)

Regardless of that, family law is repeatedly accused of being ‘anti-father’ and as excluding men from their children’s lives. Led by some fathers’ rights groups like Fathers4Justice and Real Fathers for Justice, the rhetoric that has taken hold is of the court colluding with hostile and vengeful mums to stop loving and blameless dads from seeing their kids. If that were true, it would be shocking and a matter for immediate and serious reform. But it’s not true – it’s a myth.

I’m not saying that there are no cases where something a bit like that might happen. I’m sure there are. The family justice system is very large and the courts deals with the best part of 100,000 cases about children’s relationships with their parents every year – no doubt there are a few cases where the judge gets it wrong (that’s why we have an appeal court!), or where not enough is done to stop mothers from keeping good fathers away from their kids. But these cases are a tiny and unrepresentative minority, and it is wrongheaded to call for reform of the entire system based on these examples. As I said in my last post, anecdotes make powerful stories, but they're a bad basis for making decisions when we have good research available.

Looking at the research, what we see is very different. The records for 2010 (the latest available) show that 95,500 cases went to court about children's contact arrangements. Of those, only 300 ended with the court specifically refusing to allow the father to see his child. That’s 0.31% of litigated cases – or, when you take into account that only10% of cases go to court in the first place, 0.031% of all separating families. In a few other litigated cases the application was withdrawn (2.29% of litigated cases) , and in a few others (0.88% of litigated cases) the court made ‘no order’ (which usually happens when the parents agree about the outcome during the course of the case). But in 96.52% of cases that went to court, judges made orders which involved at least some contact between both parents and their children.

The next question is whether those orders were for ‘meaningful’ amounts of contact, or whether they were token amounts. A high-quality piece of research by Joan Hunt and Alison Macleod investigated this question in 2008 by going to courts and looking through all the files from individual cases. This is incredibly time-consuming research, but it meant that Hunt and Macleod could say with absolute certainty what was going on in the courts.

And what did they find? Well, in almost all cases, the courts gave fathers exactly what they were asking for. If they asked to have the children stay with them one night a week, that’s what they got. If they asked for half the school holidays, that’s what they got. 

So what does all this tell us? That the family courts of England and Wales are not biased against fathers. The courts almost always make orders for contact, and those orders almost always reflect exactly what the fathers were asking for. Indeed, the bigger concern is that the courts are systematically downplaying the dangers to children and mothers of domestic violence in their zeal to promote father-child relationships.

Parenting Arrangements – Sharing Rights and Responsibilities:

A large part of the rhetoric around the post-separation parenting debate is about ‘sharing’ and ‘fairness’. It is sometimes said that, because the law ‘discriminates against fathers’, it would be better to have a rule that parents automatically share the upbringing of their children after separation. Again, that sounds sensible, but it’s important to unpack what it means.

The first thing to ask is about the extent to which parents who live in the same household actually share the everyday parenting responsibilities for their children’s upbringing. Some do, of course, but the more common pattern is for one parent to take responsibility for the majority of childcare. For a number of reasons too complicated to cover here, that person is more often the mother. (I am stating this simply as a fact, not trying to give it any normative endorsement.)

Next, we need to know something about the law. When the last major reform of child law took place in 1989, a split was made between the legal rights, responsibilities and authority about children’s upbringing – which was termed ‘parental responsibility’ – and the practical everyday aspects of children’s upbringing – where they should live, how much time they should spend with each parent, which school they should go to, whether they should have a religious upbringing or not, and so on.

Following reforms to the law in 2002, almost all parents have parental responsibility automatically – and those who do not have it automatically can usually get it easily enough. In fact, research shows the courts are often willing to give parental responsibility to parents who have absolutely no involvement in their children’s lives as a ‘label’ or ‘badge’. (One particularly revealing case involved giving parental responsibility to a man who had been convicted of paedophilic offences and who was deemed so dangerous to his children that he was forbidden from contacting them in any way. Cases where PR is refused are rare and extreme.)

The fight cannot, therefore, be about shared parental rights and responsibilities as a matter of law, because these things are already shared in virtually all cases. Just in case this needs to be made any clearer (though I can’t really see that there is much room for misunderstanding), the provisions in the law on parental responsibility could be changed to state explicitly that parents share it. This change would make no legal difference at all – that is already the case – but if it makes the message clearer then I cannot see the harm.

Parenting Arrangements – Shared Time?

Where I do see real dangers, though, is in making any legislative changes at all that start to dictate particular outcomes in favour of shared time for children between their parents. The law at the moment says simply that the court must make the welfare of the child the paramount consideration. The focus is all on the child. Parents’ rights are not the issue – the only thing that the court thinks about is what is best for the kids. Shared time legislation, on the other hand, is about adults – it treats children as things that can be split in half and divided up equally so as to be fair to the parents.

It’s particularly important to remember how few cases are decided in court, and how conflicted they are. If people who get on well and who can reach amicable agreements want to organise their childcare with a more or less equal division of time between two households, that can work quite well. Recent research in the UK shows that about 3.1% of separated parents outside the court choose to do this. Large-scale research in Australia shows that where parents get on well and can be flexible about the arrangements from one day to the next, shared time can work well for the kids involved.

However, two characteristics rarely found amongst parents who end up litigating in the family court are an ability to get on well with each other, and a flexible approach to the other parent. These 10% of people are highly conflicted and have major difficulties with their parenting – and the government is planning to introduce a presumption that these people, of all people, should split the care of their kids 50/50 between two households?? This is a recipe for disaster, and flies in the face of huge amounts of robust and careful research.

Research shows that shared time can be a good option for some kids, though it is not clear that shared time is any better or worse than having primary care with one parent and contact with the other. But for other kids – and this is the important part – shared time is clearly worse than primary care with one parent and contact with the other. So who are the kids who do worse with shared time?

Put simply, shared time is bad for children when any of the following characteristics is present:

• there are concerns about violence (either directly towards the children or, more commonly, by one parent towards the other)
• there is high conflict between the parents
• there is a very rigid and inflexible arrangement of sharing the child’s time between the two households.

Okay, so now think back to the characteristics of the separating parents who end up in court. What did we see? High levels of violence, high levels of conflict, high levels of inflexibility. The research clearly shows that most people who end up in court arguing about parenting arrangements will not be well suited to a shared time arrangement, because the people who end up in court tend to have problematic relationships which make shared time bad for their kids.  

To be honest, none of this surprises me. If I had to pack a bag and move house every 3 days, I wouldn’t be very happy and I wouldn’t do so well at work either. Adults who do this as part of their job find it very dissatisfactory and, in general, try to avoid doing it for any prolonged period.  Then add in the high levels of conflict, inflexibility or violence between people in the two households, and it sounds like a nightmare. Why on earth do we think that kids, whose worlds are still developing and who find it harder to think about things in a long-term way, would find this a good way to live.

Conclusions:

Constant moving from one household to another is hard work, physically and emotionally. The research shows that the kids who do well with split time find their living arrangements manageable and do-able if they feel at home in both houses, and where both parents work cooperatively and flexibly to make the arrangements child-focused. If the parents can do that, then great. But if the parents can’t even be cooperative and flexible enough to make arrangements without going to court, there is nothing that the court can do to help, and imposing shared time arrangements on uncooperative and inflexible parents will be damaging for the children concerned.

In general, kids should have strong, on-going relationships with both their parents so long as it is safe to do so. The irony is that trying to encourage an equal split of time amongst the conflicted parents who end up in court is likely to lead to the exact opposite. All children are different, of course, but the consistent message from research around the world is that kids hate rigid clock-based care arrangements. Moreover, there is no reason to think that more time equals a better relationship between a parent and his or her child. What matters is the quality of the time that the parents spend with their children and whether they are good parents – better to have a really great weekend than a really stressful week.

So, despite the attractive rhetoric of sharing and fairness, it is important that the law not be changed to favour shared time parenting. Sharing and fairness are about adults. When we keep our eyes on the children whose lives we are discussing, shared time is demonstrably a bad option.

Research Versus "The Anecdote"

This is a post about the challenges of communicating research findings which have to go up against compelling but unrepresentative anecdotal stories, taking as an example the anecdotal attack on the family courts.

My colleague Peter Clarke used to joke that his students would "never let the facts get in the way of a good argument". In this post, I offer some thoughts on the difficulty that researchers often have in dispelling myths when they have to challenge an established public or media narrative that is supported by the all-powerful anecdote. Just as facts didn't stop Peter's students' arguments, research can struggle to overcome the rhetorical appeal of the anecdote. To paraphrase Peter, the media and the public "never let the research get in the way of a good anecdote".

Why anecdotes are compelling and research is not

Anecdotes have a number of qualities which make them great stories. First, they have human interest – we get to learn about a real person and to pry into their personal experience in some way. Second, they are usually quite simple – events unfold in an understandable way, and the consequences are easily explained. Third, they are believable because they (at least supposedly) actually happened. And finally, anecdotes are usually dramatic and extreme – after all, that’s why the story is being told. It’s like the news – only unusual or dramatic events are worthy of being reported, so you never hear:

“This morning, a woman got into her car, drove to work, and arrived there 20 minutes later without incident. On arrival, she picked up the post, made a coffee and started work. In other news, James Smith aged 8 has successfully learnt the six times table.”

Those aren't news stories, and they wouldn't be good anecdotes, because they are normal events. On the other hand, car accidents or mail bombs are news and would make great anecdotes - they are dramatic and extreme.

Research struggles to compete with any of this, no matter how interesting it is. But if the research is relevant and well done, why should this be?  Part of the reason might be that research findings rarely have any of the qualities that anecdotes display.

Most research does, in fact, have a huge amount of human interest, which seems like a good starting point. But the problem for researchers is that we struggle to tell people about the human interest in our findings because, for ethical reasons, we anonymise our work and try to make sure that the people who help us with our work are not identifiable in what we say about it – so we don't talk about individual people and we don't reveal personal experiences.

Then there’s the problem that research findings are rarely simple. We find complicated things, and as researchers we are nervous about over-simplifying what our evidence shows. When asked a question about our findings, often the instinctive (but perhaps unhelpful) response for many of us is: “well, it depends”. We find it almost painful to have to give straightforward answers, in case we look like we are misrepresenting the evidence.

Research ought to be believable, though – but perhaps the problem is that the way we try to convince people that our findings can be trusted is to tell them about our methodology – and let’s face it, that’s boring. Anecdotes don’t have to convince you of their veracity, because they come pre-stamped as being “actual events”, whereas research is an overview which can be harder to understand if you aren’t a professional researcher.

And then finally, dramatic and extreme? No, research findings are rarely dramatic or extreme. In fact, a lot of the time what we see is the exact opposite – we’re finding empirical confirmation of normal and everyday things. If you did research on people’s morning routines, most people’s would be as unexciting as my non-news story of a woman’s drive to work.

So all of this means that researchers can find it hard to give their findings traction in the public consciousness, particularly when there’s a good anecdote or two which contradict what the researcher is trying to say. Sometimes these mismatches between empirical reality and anecdotal rhetoric are annoying but insignificant - but at other times, they are dangerously misleading and potentially very damaging.

I'm going to use the second half of this post to illustrate what can happen when anecdotes trump research by taking an example from my area of research, the family justice system.

A practical example - the family courts 

The thing that has got me thinking about this at the moment is the on-going attack made by Camilla Cavendish and The Times on the family courts of England and Wales, the latest instalment of which appeared last week. This has been going on for some years now, with Cavendish writing about what she calls the "scandal" of the family courts of England and Wales. The cause of this problem, Cavendish thinks, is that the family court cases are "secret", because they are heard in private and the media are not normally in attendance. The answer, therefore, is to “open them up” to allow the light to shine in by allowing the media (and perhaps the general public) to go to family court hearings and then tell people about what they see.

I think that Cavendish is probably well-meaning, and perhaps genuinely sees herself as some crusader for justice, but her ill-informed criticisms of the family justice system based on anecdotal stories which ignore consistent research findings are wrong-headed and dangerous. Her ideas might sound sensible, but I think that the idea of "opening up the family courts" is truly misguided.

The reason that the media and the public are kept out of family court hearings is not because they are “secret” but because they are private. We are talking about incredibly sensitive, personal events in people’s lives – divorces and separations, allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep quiet, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

Leaving the merits of the debate aside, though, the real problem here is the way that the rhetoric has been taken hostage by anecdotes and stories. Cavendish and others have constructed this debate as being about "secret justice", frequently using individual cases to make vast sweeping statements about the family courts of England and Wales. Cavendish’s most recent rant damned the entire system based on one extreme case (which, incidentally, was largely taking place in the public gaze of the criminal courts, not the private sphere of the family courts) and, for great comment on that I'd recommend Lucy Reed on the Pink Tape blog. As Reed says, one complicated case where it turned out that the medical evidence that the court had to rely on was wrong does not indicate that there is a systemic problem with the family courts. There are thousands upon thousands of family court cases every year, and the vast majority proceed carefully and correctly.

Obviously sometimes people aren’t happy with the outcome of their case, but that seems unremarkable. When people go to court, sometimes they lose and sometimes they are unhappy about that, especially when the case was about something that was personally important to them (their children, for example). But just because people aren't happy doesn't mean that the system is broken. In cases where something has actually gone wrong, we have appeal courts – and, if you look at those cases, appeal judges are not shy of criticising their junior colleagues when things go wrong. (Most Court of Appeal cases are available free of charge on the British and Irish Legal Information Institute’s website.)

The reason that this matters is that the anti-family court narrative that is currently in vogue is undermining public confidence in an important institution. The family justice system isn't perfect, but in the vast majority of cases it does a good job in difficult circumstances. The independent Family Justice Review in 2011 made minor suggestions for changes to the system, but on the whole was positive in its conclusions about the workings of the system. The people who work in family justice - lawyers, judges, social workers, mediators, financial advisers, guardians and others - are mostly dedicated and hard-working, and they are doing their best to find reasonable solutions to complicated and highly conflicted problems. We shouldn't allow unrepresentative anecdotes to lead us to think that there is some scandal in the family courts, no matter how good the story sounds.

Author's note: I wrote a briefing paper on media access to family

court cases in 2009, funded by the Nuffield Foundation. While I

conduct research into family law and the family courts, I do not

work in the family justice system and have no personal interest in it.

Legal Aid Bill - Ping Pong Time

The Legal Aid, Sentencing and Punishment of Offenders Bill enters the Ping Pong stage in the House of Commons this week. The House of Lords defeated the Government on 10 separate clauses in March, as I discussed at the time. Now we'll find out what the House of Commons has to say in response, so this is a good time to rehearse some of the many many arguments against these savage cuts to the family law legal aid budget. (For a longer analysis, see this great piece by Joanna Biggs from the LRB back in October.)

So, legal aid in family cases - what is it and why does it matter? The first thing is to know how much money we're talking about here. There is this often-quoted figure of £2.1bn spent on legal aid every year - it's true, but only about £600m of it is spent on family work, split roughly £350m for child protection cases and £250m for other family work. The huge bulk of legal aid - about £1.2bn - goes on criminal work, and the increase in the cost of that over the last 20 years has been mainly caused by over-zealous governments creating more and more complicated criminal law.

The government says that our legal aid system is the most expensive in the world. Well, that's only true if you look at misleading figures. As my colleague John Eekelaar demonstrated, when you take into account the total costs of delivering justice (including legal aid, court costs, judges' salaries, enforcement, and so on), our system is about average. That's because spending money up front on legal aid helps to save money later - cases are resolved quickly and (as I discuss later in this post) most cases are kept well away from court, leaving judges to focus on the really hard cases. So cutting £350m from the legal aid budget might actually make our legal system more expensive as it becomes less efficient!

Next, we need to understand who the people are that get legal aid at the moment. The answer is that really very few people get it. There are three main categories of family case that get legal aid, namely:

• cases involving a local authority where a child is being, or is at risk of being, abused or neglected
• cases between separated parents about the upbringing of their child
• cases about the separation of adults where there is a dispute about financial issues 

But of the people involved in these cases, very few get legal aid now. The eligibility criteria that the Legal Aid Board uses combines both a means and a merit test. The means testing asks about your income and savings, and the merit test asks about whether the case is likely to succeed. And the means testing is strict - your ability to get legal aid relies on your having less than £3,000 of savings and an income of less than £2,300 per month and having less than £302 of disposable income per month. Almost everyone I know fails on at least one of those criteria. And even if you meet those criteria on the means side, the Legal Aid Board still has to be convinced that you are likely to win your case.

So what we are talking about here is providing money to pay for legal advice for people with very little money and where the law is likely to provide a solution to their problem. And what's more, people in the third category of family case (cases about financial orders, where there might be some money floating around at all), the money is a loan, not a gift. There's this thing called the 'statutory charge', which means that if someone keeps or gets money or property as a result of getting legal aid, they are required to repay the Legal Aid Board from that money or property. So lots of the legal aid money that we currently give out we actually get back again - which makes you wonder why the government is wanting to abolish that part of legal aid. That part of legal aid, at least, is very cheap indeed.

As I explain more fully in my book that comes out in August, family law is about justice. Family law often gets a degree of ribbing from colleagues who work in other areas of the law because it involves so much 'discretion' (meaning, fact-sensitive decision-making) and few hard-and-fast rules. But the lack of hard-edged rules doesn't meant that family law isn't law - it is. It is the law of people's intimate and personal lives - as John Dewar wonderfully put it in 'The Normal Chaos of Family Law', it is about love, passion, intimacy, commitment and betrayal - and what could be more important?

Around all of that emotion and life, though, people have legal rights. When we think that a child is being abused or neglected, the child has rights, but so do the other family members. I think that's easy enough to understand, which perhaps explains why the government wants to keep child protection cases within the scope of legal aid funding. But private law family cases (that is, those between family members and not involving the state) involve rights too, and they too are about justice.

When spouses divorce, for example, it is not a matter of one person's charity or generosity that he or she has to pay maintenance or transfer property to the other person - it is because the other person has a legal right to take a fair proportion of the fruits of the family to start on the road towards independent living (as Lady Hale put it in Miller v Miller).

So to remove legal aid from family cases is to say to the poorest amongst us that the law and justice are not available for them. Only those who can already afford it can get the legal help that is necessary to make legal rights meaningful. In the context of family financial disputes, this is tragically ironic - the fact that a woman (usually) is poor means that she will be unable to access the courts in order to get money from her former husband to make her less poor. How can any society in good conscience think that this is an acceptable way to go about things?

The government seems to think that the answer to all these problems is for people to be more reasonable and, if that fails, to mediate. Well, I think we can all agree that life would be easier if people were more reasonable, but that isn't really an attainable goal for social policy. Leaving that aside, though, there are two things that this argument misunderstands.

The first thing is that only about 10% of separating couples go to court to litigate about their financial arrangements or about their children. Looking at those people, they often involve very high conflict, domestic violence, drug or alcohol abuse, or mental health issues - in other words, issues that make 'reasonableness' a rare commodity. So if you want to evaluate the family justice system overall, you need to take into account the vast majority of cases that are negotiated and settled away from the courtroom.

The second thing links to the first, namely that the government's contrast of "lawyers bad" with "mediators good" is a huge distortion of what family lawyers actually do. Research has shown time and time again that family solicitors and barristers spend the vast majority of their time negotiating, cajoling their own clients and 'the other side' towards agreements and away from court whenever possible. Many family lawyers are trained as mediators in addition to their legal qualifications. But the key thing is, if you are negotiating with a lawyer's help, you know what your legal rights are.

A lawyer won't let you agree to something that is a really bad deal for you and significantly outside the range of options that a judge might find acceptable. Whereas if you go to mediation without a lawyer and without understanding your legal rights, you have no safeguard against being pushed towards a deal that does you out of things you are legally entitled to have. Such risks are especially high for the person with less bargaining power, which, in family law cases, is often women and children.

So let's summarise. Legal aid for family cases is really quite cheap. It only goes to those who have very little money and a case that they are likely to win. And the government's supposed 'answer' to the damage that cutting legal aid will create simply flies in the face of reality. In other words, the Legal Aid Bill should be opposed on grounds of both principle (society should pay to ensure that the legal rights of its poorest citizens are protected) and practice (the government's proposals will cause chaos in the family courts).

Relocation Disputes in the Family Courts

Family law engages with areas of people's personal lives and feelings which the law normally keeps well clear of - things like love, passion, intimacy, commitment and betrayal, to adopt Professor John Dewar's list in his article 'The Normal Chaos of Family Law'. Most separated parents have very little to do with the family court. They sort things out for themselves in one way or another, often negotiating and re-negotiating their new and complex post-conjugal relationship many times as their children grow up. But other parents are simply unable to sort things for themselves. Sometimes the parents are too angry and too hurt to reach agreement, and sometimes their cases are just too hard for compromises to be found.

Relocation disputes (also known as 'leave to remove' cases, 'removal from the jurisdiction' cases or, in North America, 'move-away cases') are usually in the latter category. These are cases which arise when one parent proposes to move to a new geographic location and take their child or children with them. These cases often involve proposals to move to a different country, though they might also be about moves within the UK. Even quite short moves can be disputed sometimes (see E v E [2006] EWCA Civ 843, where the move in question would have been just over an hour's drive), though these cases usually settle long before the court gets invovled.

There are many complications to relocation law, and many commentators inside and outside the legal professions have strongly-held views. I have been researching in this area for about 6 years now, and I still find angles that I hadn't thought of before and questions that I can't answer. One difficulty is that both parties to the relocation dispute have good arguments to support their positions, and it is hard to think that one of them automatically has the better of the argument.

The parent seeking to move (usually but by no means always the mother) can say that she is entitled to live her own life and not be tied to her former partner for the rest of her life. She is often wanting to leave to the UK to return to her original home country, often seeking support from her wider family in bringing up the children. She might have a new partner who needs or wants to move - maybe for work, for family, or simply to go in search of a better life. From an equality point of view, it can also be noted that parents who are not performing the main care-giving function in their children's lives are free to move as and when they like, regardless of any impact on the children or other parent.

On the other side, the parent opposing the relocation (usually but not always the father) can fairly point out that his relationship with his children is also important for their wellbeing and upbringing, and that he will be sidelined in their lives if they move away. A weekly chat on Skype is hardly going to fill the gap left by a day spent together every week (and in fact the non-moving parents in relocation disputes are often seeing their children far more often than this). Moving to a new country is often disruptive for children in terms of schooling, and if the country in question is culturally very different from the UK then some children struggle to settle.

There is lots that we know about relocation disputes in the family courts, but far more that we don't. The family courts in this country keep especially poor administrative data about their cases, which means that we do not know some incredibly basic information. Things like: how many relocation cases are litigated every year. Or how many relocation applications are allowed and how many are refused. Or how many cases are brough by mothers, how many by fathers, and how many by other family members. Or how old the children are, on average, in a relocation case.

For anyone interested in reforming the law - and there are many people who think that relocation law in this country should be looked at again - this lack of information is a real problem (though they don't always seem to realise it!). How can we know whether the allegation that the law is biased in favour of relocation is true or not when we don't even know how many applications are granted?

There are lots of ways that research could help to answer these problems. One approach, which the British Academy is funding me to try, is to gather as many family court decisions in relocation cases as possible over a 12-month time-frame. All the family court judges in England and Wales have been asked to send in copies of the judgments and orders that they make during 2012 to me to analyse. The going is quite slow so far - just 6 or 8 cases per month have arrived so far - but it is hard to know how successful the research is becuase we don't know how many cases there actually are! (The first question you want to ask as a scientist is about response rate, but this research can never answer that question - I don't know whether there really were only 8 cases in January 2012 and I got them all, or whether there were 80 and I got only 10%.)

Anyway, only time will tell - but the need for relocation law is not going to go anywhere any time soon. Migration rates are increasing every year and, as people increasingly share the care of children in post-separation parenting arrangements, the arguments about proposed relocations are surely going to become more frequent too. The more we can learn about these cases, the better equipped we will be to know how best to resolve them.

Further details about my research project and publications can be found on my Faculty webpage.

Legal Aid Bill Amendments

The House of Lords today followed its earlier impressive performance over welfare and health issues by inflicting a series of defeats on the government over proposed cuts to legal aid in the Legal Aid, Sentencing and Punishment of Offenders Bill. Polly Toynbee has written an insightful (if oddly named) comment in the Guardian, which highlights that the government's Bill will not only be an ineffective way of saving money, but will also hit hardest those who are worst off in society.

The thing with legal aid is that it is the key to guaranteeing everything else. Legal rights are fairly meaningless if you don't have the meaningful possibility of enforcing them. Most of the time people don't need to enforce them - but the possibility of enforcement is crucial. If you can't fall back on the court then there is no real incentive for the other person to respect your rights - and having a lawyer to represent you in court or in a pre-trial negotiation is vital to having real access to justice. Most people do not know the law or how it works - that is why we have lawyers! The law is a complicated and specialist profession, and when you have a legal problem you want someone representing you who knows what they are doing.

Now, it's fair to say that most of us do and should pay for a lawyer if we want one. The question is how much should be available funded by society, and the answer seems clear enough - we should fund legal representation for those who genuinely can't afford it to bring meritorious cases. So there are two tests: (1) a means test for the individual seeking the funding, and (2) a merit test for the case they want to bring. And funnily enough, that's exactly what the law at present provides.

In terms of test (1), the means testing, the criteria for getting legal aid for non-criminal cases are already very strict - almost no one that I know would be eligible. You can take a look for yourself by putting in some figures to the government's calculator. The amount of legal aid you can get starts to be reduced if you have more than £3,000 of savings, and you get nothing at all if you have £8,000 of savings or more. And obviously they take salary into account as well.

Then there's test (2), the merit test. The Legal Services Commission has guidelines and the lawyer that you have gone to who is trying to get legal aid for you has to convince the Commission officials that the case is likely to succeed. Not that it could or should - that it is likely to. In other words, your case is likely to win - which means that your rights have been infringed, or someone owes you money, or something like that.

So, basically, cuts to legal aid are a denial of justice for the poor. The government is trying to stop people with no money of their own from getting help remedying legal wrongs and claiming things they are entitled to. Is this the kind of society we want to live in?