A Review of a Review of Ideas and Debates in Family Law

There are many ways that one can go about reviewing academic books, but a fairly standard approach is to offer some kind of summary of the main issues or arguments that it raises and then to comment on them in some way. If a book offers an analysis which is problematic, or if it misses or mis-uses evidence, then of course it is appropriate to criticise it. It's also reasonable to point to issues that the author might have looked at but didn't, if they are relevant to the book's content. But I think it's always helpful to keep in mind the realities of how books are written, and to look at what the author says he or she is trying to do when judging whether or not they have succeeded. Also, as my doctoral supervisor once told me, always end with the most positive thing you can honestly say.

With that in mind, I've been trying to decide if it's churlish of me to want to respond to a review of my book, Ideas and Debates in Family Law, that Claire Simmonds has written in the Cambridge Law Journal. It's a compliment when anyone takes the time to read and review something that you've written, bringing their intellect and experience to bear on something you've spent time on - and there are plenty of nice things that Simmonds says, along the way, about IDFL in her review. However, a couple of things have riled me a little, so here we go.

First, the book. IDFL is a small book of about 150 pages, split into eight chapters. It evolved from a series of seminars that I've been running for the last eight years in Oxford with undergraduate family law students. It is categorically not a textbook. It doesn't contain an overview of the law, and its aim is to put forward challenging ideas that open the reader's mind to different ways of thinking about family law issues. Consequently, as I say in the introduction, 'the topics chosen for discussion are sometimes quite narrow', 'many important family law issues are not covered' and 'the topics which are covered ... could have included a number of sub-issues which are either omitted entirely, or receive only passing mention' (pp 1 and 3). In other words, with 60,000 words and the whole of family law to pick from, I deliberately chose things that I thought were interesting and that offered scope for engaging with particular issues that I had been thinking about in my research and with my students over the last few years.

Given that starting point, there are two things that irritate me about the review. One - which is relatively common thing that people do in reviews, to be fair - is that a lot of the criticism comes down to saying that had Simmonds written the book, she would have written about other things. In particular, she would have written about more things. More on the European Convention on Human Rights (ECHR), more on decisions of the European Court of Human Rights, more on the Hague Child Abduction Convention, more 'awareness' of prominent debates (?), more on public law and child abuse, more on domestic violence, more on same-sex relationships... 'as well as the existing chapters expanded'.

I mean, give me a break. You're basically saying that I should have written about the particular issues in family law that interest you, rather than the ones that interest me. Oh, and none of those issues is small, so I should also have written a book that was twice as long, which I don't think my publisher would have been too happy about.

My other niggle is about being told so many times that I have 'failed' to address issues or to notice issues. When talking about the welfare principle, Simmonds says that I don't talk about the ECHR, for example. Well, first, I do, a bit. I don't refer to the Convention by name, but my discussion on pp 117-119 is all about the inter-relationship between a welfare analysis and a rights analysis, and the way in which adults' and children's rights are, or could be, incorporated into the welfare principle. But leaving that aside, my gripe really is that, as Simmonds herself says, 'this issue has formed one of the central debates in this area in the last 15 years'. I agree, so why, in a short book which tries to look at less obvious issues, should I give space to that? Students will be getting that debate from their main readings and they don't need yet another summary of it from me.

Much the same reasoning explains my 'failure' to address various other issues. Same-sex marriage, for instance. I deal with it in a single footnote on p 75 - though, to be honest, that footnote really sums up the issue for me. There are two reasons for this 'failure'. One is that I don't actually find the debate about same-sex marriage legally interesting. It's a socio-political issue, but the legal aspects of it don't excite me much. The other, again, is that any family law student will know all the possible angles on this debate already and be seeing plenty of it in their reading.

Incidentally, this is what I mean when I say that the book should be used 'alongside a textbook' (cover blurb). Simmonds notes that family law textbooks rarely stick with black letter law these days which, she says, 'somewhat lessen[s] the impact' of IDFL as a companion book. With respect, that misses the point. I am perfectly aware that textbooks go beyond black letter law. My point is, IDFL is a companion to the modern family law textbook because, while it is true that the socio-legal sources that I draw on are commonly featured in textbooks these days, what I am doing with those materials is quite different, and the point is to let students see how we can use sources in less conventional ways.

Anyway, leaving all that aside, I'm quite willing to say that there are plenty of things that could be improved in IDFL. Nothing is perfect, and I'm open to criticism of the book, some of which has helped me develop my ideas so that if I write a second edition I already have lots of thoughts about what I'll do differently. But what I won't be doing is trying to write about everything, trying to force issues into my narrative that don't really fit there just so I can say that I've covered them, or writing massively more. That isn't what I set out to do, and it's not really a fair criticism of the book that it didn't do that.

Book Review: "Gaydar Culture - Gay Men,Technology and Embodiment in the Digital Age", by Sharif Mowlabocus

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Debating Family Law with Fathers4Justice

2.7.12: Updates about this post. First, anyone reading it should note the comments below that it provoked, mostly starting about a week after the blog was posted. Second, the 'debate' with F4J that I refer to in the title was the radio interview that started this episode: the point of this post is to illustrate what happened after I debated family law with F4J. Third, I took the unusual step of closing the comments on this post on 26.6.12. I have left the comments up to that time on here because they illustrate my point better than the original post, but personal attacks are not a legitimate part of any debate and future comments like this will be removed.

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This week I had a radio debate with Nadine O'Connor from Fathers4Justice. This post discusses some of the correspondence that I've received from people associated with F4J since that interview, and leaves readers to reach their own conclusions about what it might say.




I've had a strange experience this week - it's the first that I can recall receiving hate mail. Who is sending me hate mail? Angry dads. Why are they angry at me? Basically because they don't like some of the things that I said in an interview on BBC Radio Solent on Monday morning about proposals to reform family law. Until Sunday 24 June, you can listen to the interview, which features me and Nadine O'Connor from Fathers4Justice, on the BBC website - our bit starts about 12 minutes into the broadcast.

From what I can tell, the interview itself was fairly unremarkable. Mrs O'Connor and I didn't agree about much, but that's to be expected - why have two people there unless they have different views? She was reporting the experiences of F4J based on the people who get in touch with them, and I was talking about the research evidence in so far as it is relevant to the family law reform question.

I would imagine that most people who get in touch with F4J have had difficult experiences with their former partners, the family courts, or both, and the perspective of those people is, of course, one of the many that we should be listening to when thinking about possible reforms. But we should also bear in mind that their voice is only one voice, and it is right at one end of the spectrum - and this is where I hit some nerves of some F4J members.

Consistent findings from at least 3 different research projects have suggested that it is around about 10% of separating couples that end up in court when making arrangements about children's upbringing. (A lot more than that get legal advice - something like 80%, I think - but only about 10% end up in court - lawyers are quite good at negotiating settlements.) But anyway, whether it's a study by the Legal Aid Board in 1998 (para 3.6), a study for the Department for Constitutional Affairs in 2003 (p 39), or a study by the Office for National Statistics in 2008 (p 12), the findings are consistent - about 10% end up in court. The important thing with the ONS study is that it is based on a nationally representative sample which started out with 7,000 interviews. Most people in the sample are not separated parents, of course - they're 7,000 people who, between them, reflect the population of the UK, which means that there is no pre-selection of people based on their court experiences. When this study says that about 10% of people end up with court orders about their children, there's no reason to think it's not right. Obviously we don't know absolutely for certain, but it's reasonably clear that only a small percentage of disputes about children end up being decided by a judge.

I say all this just to set the context, and to explain why it is that I think I was on fairly strong ground with what I said in the interview. I've had a couple of emails back and forth with Mrs O'Connor  about this which, for the avoidance of doubt, have been nothing but courteous. Less pleasant, though, have been other emails that I've received and comments written about me by other people associated with F4J. As Mrs O'Connor herself noted in a comment on her public F4J facebook page, some people and organisations refuse to appear at media events alongside F4J because they consider the people associated with F4J to be "bullies". (Since Mrs O'Connor puts links to this F4J facebook page on her Twitter feed, I assume there's no problem with anyone looking at it and with me quoting from it.)

Having set the scene, I'm not going to annotate this story much more, because I think it tells itself. Below, I have reproduced, in full and with no changes or omissions, two emails that I received on Monday from Mr Barry Gaynor and Mr Pete Nicholls. My favourite part about them is the way they are signed off so politely at the end...

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Monday 18 June, 13.52

"Hello Robert

I note that have you used inaccurate data on BBC Radio Solent this morning you claimed that only 10% of cases go to Court to sort out contact, you misquoted inaccurate data by Hunt and Macleod of 2006 which references the incorrect data of the 2003 report by Alison Blackwell and Fiona Dawes ie this data is from a study of contact which was working, not those parents making Applications to Court.

Your work and people like you damage children, I hold you and your ilk responsible for the separation of children from their fathers based on lies. For too long this practiseof quoting lies has been quite common amonst your colleagues.

And am still shocked that this tactic is still allowed and that people with positions of high standing are allowed to poison to debate and spew such damaging and false statistics without any remedy, Until you are held accountable or an apology issued, I will ensure that your name be tarnished throughout the Internet for your mideeds.

Kind Regards

Barry Gaynor"

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Monday 18 June, 13.57

"Dear Rob,

Having heard you on BBC Radio Solent this morning I felt compelled to write.

Do you actually know anything about which you speak as a so called expert, and what compelled you to come on the radio so devoid of facts? Humiliating I would have thought.

The 10% you and so many other lazy and frankly ignorant journalists / academics (so called experts) quote is, as Nadine of F4J stated, based on the 2003 Blackwell Dawes report and regurgitated in 2008 by Hunt and Macleod.  The 10% figure was wrong in 2003, it was wrong in 2008 and it is still wrong despite an academic who's never been divorced, had children or more importantly lost them to the corrupt courts repeating it. I do wonder if repeating false statistics for so long can really be ignorance, or adherence to some nefarious social engineering agenda. It's just that academics are supposed to be concerned with facts and so few in family law are. One might reasonably ask what's going on. We'll find out soon enough. 

I shudder at the thought of an apparently uniformed academic researching relocation in family law due to report later this year. What are our chances? What hope have we that you might actually do the job right, that you might actually realise the human agony of one relocation let alone thousands - or the actual affect upon small children? from being forcibly removed from a loving/loved parent Here's one for you to chew over. As a mother moves around the country, so too the court which hears the case. So if mother continues to move, and forces the case to be transferred repeatedly, how might you go about stopping that without infringing her human rights - rights that in the real world damage children. Of course we could simply resolve the issue as have other states by providing equal status to both mother and father. It stops one parent (read mother) intentionally moving for their own selfish reasons and means the child is guaranteed stability - they can move only when both parents agree. That old idea of cooperation, for the benefit of the child. That's too simple though Rob, doubt there's much research income from that. I see your problem, I really do.

Anyway, I wanted to make sure you knew your were spouting bull re the 10% so I've done my job here today. Hope you had a lovely weekend Rob. Many fathers did not. Having been stopped from seeing their kids without good reason - on Fathers Day. Wonder how many took their lives this year? Now there's a piece of research that's worth doing but I doubt you'd get much funding or kudos in the brave new world of anti-family social engineering.

Kindest,

Pete"
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I didn't reply to either of these two emails. I consider them to be rude and bullying, and I am not interested in trying to defend myself against personal attack when the issues in question are nothing to do with me personally. (These emails may be contrasted with Mrs O'Connor's emails, which were perfectly polite and focused on the research findings, and to which I have replied.) There's obviously lots that I could say about the points raised in these emails, but let's hold fire because there's more to be found when we look at the comments posted on Mrs O'Connor's F4J facebook page.

Mr Nicholls features a number of times. His first contribution to the feed follows from two questions that I was asked in the interview, namely whether I've ever been divorced (no) and whether I have children (no):

"Academics are dangerous. I work with them all the time and am continually astounded by how little they know. Good thing he admitted he's never married or had kids, or stepping inside a family court room. One can see why he's an expert then. Wonder if he's ever considered become a court expert witness, he's more than under qualified for the job."

Just to clarify, Mr Nicholls knows nothing about my relationship status, only that I have never been divorced; and I have, in fact, been in many family courts. The first time was 12 years ago, the most recent was last November, with many visits in between. In any case, my claim to expertise comes from research and study, not from personal experience - on which, see this blog post on research and anecdotes that I wrote a while back.

Mr Nicholls seems very concerned with aspects of my person (as if that affects the Office for National Statistics' research). After finding a link to my Law Faculty webpage, he says: "Its Dr Rob George here, doesn't look old enough to shave let alone father a child". Mr Nicholls then notes from my profile page that I am researching relocation disputes (on which see my earlier blogs on internal relocation and my current project). With reference to the President of the Family Division of the High Court, Sir Nicholas Wall, Mr Nicholls says this:

"By the way, he's had special dispensation from old Nick (No, not the devil, Sir Nicholas Wall - oh, hang on...) to conduct a study on relocation as a follow up to Payne vs Payne. I wonder what he's going to come out with, one can already guess which way this highly uninformed and biased 'Dr' is going to go."

The funny thing about this comment is that I'm fairly clear in what I've written about relocation before, both in academic writings and here on my blog, that I think there's a good case for reviewing the law and asking more serious questions than the law does now about whether relocations ought to be allowed to go ahead. But hey, in order to know that, Mr Nicholls would have had to bother finding out something about me and my work before going ahead and making his defamatory remarks.

The delightful Mr Gaynor also features briefly on the facebook wall, asking if anyone has my contact details (though he seems to think I'm called Brown):

"Does anyone have Prof Brown's contact details. I would like to bombard him with up to date data regarding this issue and generally take him to task on what he intends to do in order to correct this cruel and damaging error."

So this was my Monday, basically. I spent 10 minutes on the radio and then much of the rest of the day getting abusive emails and disparaging facebook comments. Why have I put it all up here? Because I think it's important that people know that this is going on, and so you can see the extent to which people attempt to attack and discredit individual researchers in order to try to undermine sound research findings which happen not to fit with their own experiences and views.

The implicit and explicit threats made against me in those emails, and the personally and professionally disparaging remarks made about me on the facebook page, speak for themselves.

Negative Impact? When your research stops something from happening

Large amounts of money for UK university research are allocated through a process known as the Research Excellence Framework (REF). As part of the next round of the REF, academics in the UK are being asked to think about the 'impact' of our research outside academia. This post, which was originally written for the Impact Blog of the London School of Economics, discusses the idea of 'negative impact', which is when the effect that your research has is to stop something from happening.



Does it count as ‘impact’ if a researcher's great achievement in the world beyond academia is to stop something from happening? Most academics have come to think of impact as a tangible change of some kind in policy, business, industry or society in general arising because of our research. But what about the case where someone ‘out there’ has had a bad idea and is in the process of trying to implement it, and you step in with your research and stop that idea coming into being? Is that impact? And if it is, how do you show that it was your research that had this effect?

The views of REF assessment panels remain unknown at this stage, but it seems to me that this form of impact – what I’ll call negative impact – is potentially just as important as any other form. Using research findings to save the status quo from poorly informed ‘reform’ ought to be valued as highly as any other engagement that academics have with wider society. That said, I’m less sure about how you know when you’ve had this kind of effect, or how to demonstrate it to anyone.

I propose to explore this with an example from my area of research, family law. I’m not sure whether the example actually involves negative impact or not, but at least it should serve to demonstrate why this issue matters. 

An Example: Family Courts and the Media

Most court cases in England and Wales are open to the public. Anyone can just walk in off the street and watch what’s happening. But family cases involving children or post-divorce financial arrangements are different, and the default rule is they are heard ‘in private’. That means that only people directly associated with the case are allowed to be in the court room.

There are good reasons for this rule. Family courts deal with sensitive, personal events in people’s lives – 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 private, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

However, the flip side of this privacy is that the general public is not well informed about what happens in family courts, and consequently there is much scope for misunderstanding. A series of comment articles by Camilla Cavendish in The Times raised the public profile of this issue with an attack on what Cavendish called the “secret justice” of the family courts. (Although these articles were largely based on unrepresentative anecdotes that don’t fit with the bigger picture, they gained traction in the public debate because, as I've discussed before, anecdotes often make better stories than research findings).

In part because of the campaign by The Times, there was a push in 2009-10 for a change to the law. Reforms were introduced in April 2009 to allow media representatives to attend family cases, but rules on reporting cases were not changed. That meant that although a journalist could attend most cases, he or she could not write about any particular case, but only about the family court system as a whole. Given that the media’s criticism of the courts was that they were systemically biased and unfair, that seemed a reasonable step, but the campaign for reform continued.

When further legislation looked likely, the Nuffield Foundation commissioned me to write a Briefing Paper on the subject as part of Oxford University’s Family Policy Briefing Paper series. The purpose of these papers is to offer a clear overview of the research evidence available on a particular issue which can then be sent to policy-makers, government officials, journalists, think-tanks, third sector organisations, and so on. While the Briefing Paper was not a lobbying document, the message from the research was clear: the proposed changes would be complicated, difficult to implement, and involve infringement of people’s privacy in personal disputes.

My involvement with this Briefing Paper led me to give submissions to the Children, Schools and Families Select Committee and to Ministry of Justice officials at consultation meetings. The findings of the paper were reported in specialist law publications and national media, and I did a BBC local radio interview about the issue. Nonetheless, the Children, Schools and Families Act 2010 was passed by Parliament in the dying days of the last administration, and I thought that my efforts had come to nothing. But here we are, two years on, and the relevant parts of the Act are still not in force (meaning that they have no effect – they are on the books but a dead letter unless activated), and the current government is about to introduce provisions in the Crime and Courts Bill to repeal this part of the CSFA 2010.

Discussion

So is that impact? It’s obviously quite hard to work out what my role was in any of this, because there were many other people and organisations involved on both sides of the debate. It is also difficult to know quite why the coalition government has not implemented the relevant provisions, since I am unaware of any public statement on the issue. All I have is correlation (my work against the reforms, and the reforms not being implemented) but no real indication of causation.

But then, I think that’s almost always going to be true. The status quo usually has some merit which people can see, and an academic’s contribution to making the case against change will usually be only part of a larger discussion. I’ve just had a similar experience (but with a less positive outcome) on legal aid reforms, and a new debate is just kicking off on proposals to reform the law governing parent-child relationships after parental separation. In all of these cases, the research community has sought to show that the proposed reforms may be harmful in some way and that the status quo is, overall, a preferable state of affairs.

Of course, sometimes we win and sometimes we lose. But when the tide is clearly moving in favour of change which research suggests will be for the worse, there ought to be some credit for the negative impact of making those findings public in such a way as to help stop the reforms.

"Groupthink", Agreement and the Debate of Ideas

Twice in the last week, I've been accused of "Oxford groupthink" because of things I've said regarding the research about children and shared care arrangements after parental separation. In this post, I discuss why it is that I think I am not influenced by my colleagues in the way that "groupthink" implies, and I suggest, as an alternative explanation, that the charge of "groupthink" is designed to discredit a rigorously reached academic consensus that a minority group prefers not to accept.

What Is Groupthink?

It's 60 years since William Whyte Jr coined the term "groupthink", with its (probably intentionally) Orwellian overtones, in an article in Fortune magazine. Whyte acknowledged that groupthink had pejorative connotations, and thought in particular that it went well beyond the normal social pressures to conform with a group. For Whyte, the key was "a rationalized conformity - an open, articulate philosophy which holds that group values are not only expedient but right and good as well".

Unsurprisingly, this term caught the attention of scholars. Irving Janis, a psychologist at Yale, published a number of studies including an article called "Groupthink" in the journal Psychology in 1971 and a book called Victims of Groupthink in 1972. In the former, he defined groupthink in this way:

"I use the term groupthink as a quick and easy way to refer to the mode of thinking that persons engage in when concurrence-seeking becomes so dominant in a cohesive ingroup that it tends to override realistic appraisal of alternative courses of action. Groupthink is a term of the same order as the words in the newspeak vocabulary George Orwell used in his dismaying world of 1984. In that context, groupthink takes on an invidious connotation. Exactly such a connotation is intended, since the term refers to a deterioration in mental efficiency, reality testing and moral judgments as a result of group pressures."

Now, there's plenty of debate and criticism about all this (as the discussion on Wiki shows), but the basic ideas seem clear. Groupthink occurs when you have a group of people who, consciously or not, become more interested in agreeing with each other than they are in making an objective assessment. What's more, loyalty to the group overrides individual judgement; dissenters within the group are criticised and censored, and opponents outside the group are stereotyped and demonised.

Am I part of groupthink?

So is this going on amongst the academic community interested in families and the law at Oxford? Anything's possible, I suppose, but I'm not convinced. To start with, I'm just not sure that we see enough of each other. There are nine or ten of us here working in various capacities as tutors and researchers, but I can't recall us all being together at any time. Some of my colleagues here I see once or twice a year (usually at conferences outside Oxford!); one or two I see every few weeks; and the rest I see half a dozen times a year or so.

More interesting, though, is whether we find evidence of pressure to conform. In principle, I'd be surprised to find this since a large part of Oxford's ethos is a commitment to independence of thought. As a tutor of undergraduates, I try never tell my students what they should think about something. In fact, I rarely even tell them what I actually think - I'm more interested in presenting possible arguments to them and playing with the ideas. But is that what we find in the research community?

While accepting that some influences might be very subtle, I honestly can't think of any occasion when I've felt the slightest pressure to agree with any particular view. Even on occasions when I've co-authored with colleagues from Oxford, we often don't agree about everything - we just write about the things that we do agree about. For example, Peter G Harris and I disagree about whether pre-nuptial agreements should be allowed in the law or not. Nonetheless, we have co-authored articles on this issue, pointing out possible problems with giving additional weight to pre-nups.

In fact, a large part of the job of an academic is to subject the thoughts and ideas of other people to critical analysis. As a legal academic, I do this mostly with court judgments, but also with academic writing. For example, my forthcoming book, Ideas and Debates in Family Law, contains criticisms of a number of academics, including some of my Oxford colleagues.

I've also written particularly on the importance of dissenting opinions and counter-thought. My article, "In Defence of Dissent", was focused on the value that minority opinions have in court judgments, and I criticised a number of Supreme Court judges for appearing to 'discipline' one of their colleagues for publicly expressing disagreement with the majority view. However, the same applies in all walks of life, as I said in the article. Obviously we all pick our battles, but I hope that I'm usually willing to say when I disagree with something. (Just ask anyone who goes to Faculty Meetings or conferences with me!) So I think, on the whole, that I'm fairly aware of attempts to influence what I think about things.

There's more, though. The implied description of a so-called Oxford group of academics belies the national and international community of scholars that we work in. I see many of my colleagues from other Universities more often than I see some of my Oxford colleagues - from Exeter, Cardiff, Edinburgh, Cambridge, UCL, KCL, Sussex, Birmingham, Bristol and, internationally, from Melbourne, ANU, Sydney, Otago, Columbia, UBC, Cape Town, Paris... Obviously, these interactions come in different forms, but include lengthy and well established relationships, including plenty of people who are well prepared to tell me that they think I'm wrong, or that they think I've misunderstood something. This happened on a draft of my blog post on shared parenting, in fact. I sent it to a colleague outside Oxford to review it, and was told that something that I had written "went beyond the evidence". When I went back and checked my references, I saw that I had indeed got that point wrong, and it was duly changed before the blog post went live. I hope that my colleagues would always tell me if they thought I was wrong. It doesn't mean I'll agree with them, but I'll think about it some more and decide if they have a valid criticism or not.

The charge of groupthink also belies the sheer amount of time that I spend reading and thinking about cases and academic research. It was all but said to me last week that my views on some of the shared parenting research were based on an inaccurate summary given to me by someone else. That charge is offensive on a number of levels, not least because of the days of my life that I have spent reading vast and often dense reports and articles.

Understanding the Groupthink Attack:

It's possible that, without realising it, I am part of a groupthink culture - but I don't think so. I think, rather, that the charge of groupthink is designed to discredit an established, widely-held and in fact now dominant academic consensus of which I happen to be a part. Looking at a large body of research conducted by many scholars in many countries, I have reached certain conclusions. Those are also the conclusions of many (but not all) of my colleagues, and those conclusions are disliked by certain individuals and organisations because they do not fit with their own views.

However, finding their own views to be in a minority, some of those who disagree with my conclusions feel the need to attack the general consensus. There's nothing wrong with having a general consensus challenged - indeed, it's healthy, and I'm not unhappy about that. But there's some interesting politics when the attack is not about the research that I draw on or the way that I reach my conclusions, but rather on my very integrity as an academic scholar. The charge is that I have failed to make an independent appraisal of the evidence, that my ability to see reality and to exercise moral judgement has been impaired, and therefore that my comments should be disregarded because they are part of an invidious collective view.

In a way, I'm flattered that anyone thinks that what I say is potentially important enough to be worth going to this effort to discredit me. On the other hand, academics trade on our reputations, which is why I've thought it important to take a little time to explain why it is that I think my views are, in fact, my views based on my own analysis of the available evidence. They have been argued about and bounced around with friends and colleagues in Oxford and beyond, but they are, none the less, my views. The fact that many other academics have reached similar conclusions is not evidence of some conspiracy or a lack of ability to think for ourselves, but rather of the fact that there is an established, independently and rigorously reached academic consensus.

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

Jurisdiction) and K v K (Relocation: Shared Care Arrangement) in detail.