Corporate Veils and Gender Wars - A Reply to Richard Todd QC

In the August issue of Family Law, I wrote a short article about the Supreme Court ruling in Prest v Petrodel [2013] UKSC 34. That article was, in turn, a slightly expanded a more 'academic' version of my post on this blog about the ruling. Petrodel, for those who don't know, was a matrimonial finance dispute. The massively wealthy husband held a large part of his wealth in a number of companies entirely owned by him. During the marriage, he used these companies to provide a lavish lifestyle for himself and his family, yet somehow once divorce proceedings began he found himself unable to access any funds and unwilling to disclose large swathes of relevant information to enable the family court to assess the extent of his wealth and make a fair award to the wife. So far, so fairly unexceptional as big money divorce cases go. The cases ended up in the Supreme Court on the question of whether the family court is entitled to 'pierce the corporate veil' to gain access to assets held by the companies in order to transfer them to the wife.

As with my blog post, the article in Family Law gave a summary of the decision, and then moved on to discuss some of the possible bigger questions arising from the judgment. In particular, since there was something of a dispute between the way that family lawyers and company lawyers saw the issues in the case, I said this:

'...two aspects [of the case] combined to give the initial impression that family law might have won the day. However, it seems more like a case where Mrs Prest won her battle but family law lost the war.' 

As I went on to say, the main way in which the case marks a 'loss' for family law is that one of the tools that had been used to ensure that family financial arrangements were fair after divorce was lost - the family court can no longer get at assets that are held by companies when one of the spouses has complete control of that company.

Anyway, I don't want to re-hash that argument here. My reason for coming back to the matter is that Richard Todd QC, who acted for the wife in the Supreme Court, wrote a short piece for Sweet&Maxwell explaining why my Family Law article was wrong about this, and I thought that it was interesting. (Also, what better way to tempt a response than with the sweet words 'Rob George is wrong'? No seriously, it's interesting, and flattering that someone as senior as Richard Todd QC spent time thinking about my article and replying to it.)

So first a quibble. Richard Todd has a dig at me for saying - in his words - that 'Mrs Prest (probably) won her battle' because, as he says, 'there is no "probably" about it'. Well, I agree, which is why I never said probably - I said she won. I quoted a cautionary point from Lady Hale's judgment about whether there might be difficulties ahead still in realising those assets (Todd says not, which is good news), but there wasn't any doubt that she won. The question for me is whether the way in which the Supreme Court reached that conclusion might be less useful for wives in future cases. The only place I can see that I can be mistaken for saying 'probably' is in the sentence quoted above, but as a matter of construction (!) I think that it's reasonably plain that I am contrasting my conclusion (she won but family law lost) with the initial impression given in the preceding sentence (family law won).

Anyway, that's by the by. A much more interesting point, where I truly hope that I am wrong, is about whether family law did indeed lose the day. Accepting my premise that the 'war' being fought is for gender equality, Richard Todd's argument is that since the Petrodel ruling he has been contacted by 'many troubled bankers' and companies wondering how secure their financial position is, but not one wife has been in touch to ask the equivalent questions. He goes on to give three reasons why this shows that wives will be better off after the Petrodel ruling.

Would that it were so, but I'm not convinced by the 'casual and unscientific illustration' (Richard Todd QC's words). I find it entirely unsurprising that after a big money court decision affecting company assets, the companies and men who run them would go running to expert lawyers to ask about their financial position. The companies have reason to be reading law reports and the money to get legal advice, and the men are the ones who know that they are siphoning off their assets into those companies - of course they're the ones going to specialists like Richard Todd. The wives, on the other hand, are unlikely to read Supreme Court judgments about piercing the corporate veil, and if they do they are unlikely to be aware that it is an issue which affects them. Meanwhile, the men - with the advice from lawyers that we now know they are already getting - are busy using the helpful guidance from Petrodel to make sure that the assets are indeed safe behind the veil.

So yes, I hope that I'm wrong and that Petrodel is indeed 'a triumph' for family law - but I'm not holding my breath.

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.

Family Court Cases - Understanding Some Numbers

In this post, I attempt to explain some of the recurring but often misunderstood numbers that are used in discussions about family law and the family courts of England and Wales. In particular, I show how these various numbers fit together to make sense of the claim that 'about 10% of separating couples have their parenting arrangements decided by a judge'.


Two of the posts that I have put on my blog previously - this one from April about what the research says about different care arrangements for children after parental separation, and this one from June about some of the correspondence I had following a radio debate with someone from Fathers4Justice about family law reform - have made reference to some numbers and statistics about family law. In correspondence, in comments on my blog, and in blogs written about me elsewhere, people have taken issue with some of these numbers, and this post is designed to answer one of the more recurring issues.

The question that people are asking is basically this: how do you reconcile the claim that about 10% of separating parents end up with a judge making the decision about their childcare arrangements, with the number of children involved in family court cases and the number of children whose parents separate every year?

The Starting Point: About 10% of Parents Get Childcare Arrangements Decided by a Judge

First the 10% number. I've always been clear that it is about 10%, not exactly 10%. Using a representative sample of people (meaning that the general population is reflected as closely as is possible in the sample of research participants) this 2008 ONS report found that 8% of resident parents and 17% of non-resident parents said that they had court-ordered arrangements about contact. In actuality, the numbers ought to be the same for both parents but, bearing in mind that these numbers come from the parents' reports, the disparity between the numbers could be caused by a number of things.

One reason might be that some cases involve both court orders and agreement between the parties - the court makes an initial order and the parents later agree to vary it to meet changing circumstances, for example. It may be that more resident parents classify that as 'agreement' and more non-resident parents classify it as 'court order'. 

The reasons for the variation are not entirely clear, and it does highlight one of the problems that we face in making absolutely precise claims about family law. The research isn't perfect. In this study, it turns out in retrospect that the question being asked wasn't quite precise enough for our purposes here, and it would certainly be interesting to explore in more detail why different answers came from the two sample groups. But even with that limitation, this is a strong and representative study. In particular, it started with a nationally representative sample, and everyone was asked the same question. Given that, there is no reason to think that one number is going to be more accurate than the other, and taking an average gives us 12.5%.

12.5% is obviously slightly more than 10%, and I'm going to use 12.5% here. I don't think that the difference between these numbers is hugely important, and when talking to the general public as I did on the radio and as I do on this blog, I think they are close enough that it's reasonable to summarise as 'about 10%' - but today I'm going to be as precise as possible, However, to be clear, these are 'best estimates', so the claim is still that about 12.5% of separating families get their child care arrangements determined for them by a judge.

How many family court cases are there?

Now some numbers from the courts. These are 2010 statistics, taken from Tables 2.3 and 2.4 of this administrative report that the Ministry of Justice compiles every year. Those Tables include both Public Law and Private Law and, put simply, Public law is about child protection (taking children into state care because of abuse or neglect) and Private Law is about parenting disputes - we are only interested in the Private Law aspects here.

Within that, I'm focusing on the contact and residence stats because those two types of case are the ones about children's living arrangements and relationships with their parents. (The other orders - specific issue orders and prohibited steps orders - are about details, like which school the child goes to, whether the child should have a medical operation, whether the child should have a religious upbringing and, if so, of which religion, and so on.) So, here it is:

- Number of children involved in cases about residence orders: 40,420
- Number of children involved in cases about contact orders: 46,350

This adds up to 86,770, but it is wrong simply to add them up because some children will appear in both categories - once the judge has made an order about residence then (if it is not a shared residence order) the same child may well be the subject of a contact order. I don't know how many children that would account for, but we can avoid any possible claims that I am trying to manipulate the numbers by using the 86,770 figure. That number is almost certainly too high - possibly by a large margin - but I'm okay with using it for present purposes.

On my post about high-conflict shared care arrangements, I referred to there being '95,500 cases that went to court about children's contact arrangements in 2010'. This is from Table 2.4, which shows that the number is actually 95,460 (for those who want precision). It was a little bit sloppy of me to call these 'cases'. I was trying to make it easier to read, but they're actually called 'dispositions' in the report, and the reason for that is that one 'case' may have many 'dispositions'. There were also 36,970 dispositions involving residence, which I didn't mention previously because it wasn't the focus of my discussion.

Typically, the reason why one case has many dispositions is that a case has one or more 'interim order' made before the final order is reached. (When it is obvious that a case is going to go on for a while the court almost always makes an interim order to put some arrangements in place pending the final decision.) Another reason why there are more dispositions than cases is that some cases come back to court several times - a point I'll come back to later.

So this is how it can be that the court made 132,430 dispositions about residence and contact in 2010, when, at most, 86,770 children were involved in family court proceedings about residence or contact that year. What's more, thinking about it logically, many dispositions will involve numerous children per disposition. If Dave and Sarah have two children but go to court only once, they will add in two children but only one disposition to the statistics. So we need to be a little cautious about using these raw numbers without thinking about what they mean in practice.

But Look How Many Children Go Through Parental Separation Each Year...

The next claim made is that if the 12.5% figure is right, then you can't tie that in with the number of children whose parents separate each year. The argument goes like this: if 86,770 is 12.5%, then that means that 694,160 children are involved in parental separation every year, and that's obviously not true. A fairly standard estimate is that about 240,000 children go through parental separation each year, though we don't really know because parents who are not married (which accounts for nearly half of children in England and Wales) do not have to inform the state when their relationship ends.

However, the 12.5% figure can't just be used to multiply the total in this way, because the two numbers relate to different things. The 12.5% figure is about the proportion of parents who obtain court-adjudicated outcomes. This is a very different thing from the number of court orders made, or the number of children involved in court cases. To understand this, the way that a family court works needs to be understood.

The family court does three main things:

• One is the typical 'court' job - hearing evidence from two parties who disagree and then making a decision about the outcome of that case. This is called adjudication - the judge actually decides the outcome.
• The second thing that a court can do is to formalise an agreement that the parties have reached, making what are called consent orders. While the judge has the power to reject the substance of the agreement, consent orders are basically the court rubber-stamping a deal done between the parties.
• The third thing that the court does, which is not relevant here, is case management - setting dates by which things need to be done, ordering that documents be disclosed, and so on.

In the court statistics that we were looking at, there is no differentiation between adjudicated dispositions and consent dispositions. There is just a total, with no breakdown into categories. I don't know any statistics about the frequency of consent orders in this country, but they are very common. (For comparison, in New Zealand consent orders make up two thirds of all family court orders, and undefended applications a further 24% - only 8% of orders come from contested hearing where the judge has to decide between two sides.) This is very important, because the 12.5% figure that I was quoting is about adjudicated dispositions - about 12.5% of parents have their case resolved by a judge actually deciding what should happen.

So right away that takes the 86,770 number down a good way. I would guess it might be about half of all cases, but I'll go with 30% to minimise the chances that I look like I'm fiddling the numbers. So, the remaining 70% gives us about 60,000 children. That number is still double the 30,000 children that we'd be looking for if the 12.5% number were right. So how do we explain that?

The answer is actually rather obvious. Lots of cases go to court more than once, and they do so over a number of years. Parents do not necessarily separate and go to the court all in one year, and then never return - there are many patterns. Some people go to court almost immediately after they separate; others muddle through for a few months or even years before something happens (often a new partner or a new child comes into the family and upsets the delicate balance of the existing arrangements). Some families get one court order and then manage to make things work in one way or another after that without returning to court. Other families are serial court users, most commonly with intractable disputes that drag on, with interim orders along the way, over several years.

A straw poll of family lawyers that I know estimated that between 35% and 75% of their child law cases involve re-litigation or on-going litigation - that is, either families returning to the court a second, third or fourth time, or families whose cases go on over months or years, with multiple hearings and dispositions along the way. When Nadine O'Connor and I were talking on the radio a couple of weeks ago, she said (as I recall) that she had been involved in about 50 court hearings about her children. That doesn't necessarily equate to 50 dispositions, but it will be several dispositions and, one would think, they will have taken place over the course of a number of years.

So yes, many of the children involved in the 2010 court cases were parents who separated in 2010, but many of them will have gone through separation several years earlier and will still be appearing  on the 2010 statistics. And that's how it is that even when you attach actual numbers to the family court cases, it's reasonable to say that about 12.5% of separated parents end up getting a final order from a judge about residence or contact arrangements.

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.

Deconstructing the Marriage Debate

Some people claim that gay couples should not be allowed to marry because it will be bad for children, have adverse consequences for other people, and because it is in any case unnecessary since civil partnership gives the same legal rights as marriage. This post explains why those arguments do not stand up to scrutiny. Marriage is a good thing, and it is sad that those who claim to be 'for marriage' are trying to argue against letting all committed couples marry if they wish to do so.



I attended a panel discussion on allowing same-sex couples to marry, hosted by the British Academy in London, earlier this week. On the panel were

 - the Rev Dr Giles Fraser, formerly Canon Chancellor of St Paul's and now a parish priest in London
- Professor Leslie Green, Professor of the Philosophy of Law at the University of Oxford
 - journalist Melanie McDonagh, currently a Leader Writer for the London Evening Standard; I cannot find a useful summary page, but a google search gets you lots of her published articles.

The panelists were, of course, aiming to give a different perspective on the issues raised, and a vigorous debate followed their talks. I'm not going to engage with all the points discussed there, but some of the claims made by Ms McDonagh reminded me of things said by the Coalition for Marriage (C4M), and I find these claims impossible to let pass.

The claim that marriage is good for children:

One of Ms McDonagh's points, and which one also finds under the heading 'Marriage is Unique' on the C4M homepage, is that children do best when they are raised by a mother and a father who are married to one another. As C4M puts it, 'the evidence shows that children do best with a married mother and a father'. Well, there is indeed a good deal of evidence that this claim, in itself, is true.

The problem is that those who are trying to make any further claims about what this evidence means are confusing correlation with causation. Children's well-being and marriage are positively correlated - in general, children of married parents do better on most standard measures than children whose parents are separated, children with only one parent for whatever reason (death of a parent or an absent parent), and children whose parents live together but are not married. However, that correlation says nothing about causation - the question of whether marriage causes this greater well-being is not answered by observing the correlation.

So what do we know about the causation? In 2010-11, the Institute for Fiscal Studies (hardly a radical organisation) published a number of papers based on their study of marriage and unmarried cohabitation. What their research found was that people who marry tend to have more of the characteristics that contribute to greater child well-being and relationship stability than those who have children outside of marriage. Research economist Dr Ellen Greaves is quoted on the IFS press release as saying this:

"It is true that children born to married couples are on average more cognitively and emotionally successful than children born to [unmarried] cohabiting couples. But careful analysis shows that this largely reflects the differences between the types of people who decide to get married and those who don’t. On average those who marry tend to come from more advantaged families, and are more cognitively and emotionally successful themselves, than those who cohabit. This explains the differences in outcomes for children. Marriage itself appears to confer little, if any, benefit in terms of child development."

So yes, it's true that children whose parents are married tend, on average, to do better than those whose parents are not married. But the children who do less well would not be helped by the mere fact of their parents marrying. (The main effect of such a shift would be on the statistics: the average well-being for children of married parents would come down, as less well-resourced (in a broad sense) parents entered the 'married' category.) The best thing that we could do to promote children's well-being is to help the unmarried parents to acquire more of the things that married parents already have - education, material resources, and other things to help with emotional and cognitive success in the adults.

I cited the IFS findings in a question to Ms McDonagh, and she responded by saying that "those findings have been disputed". The work that Ms McDonagh referred to, responding to the IFS study, comes from the Centre for Social Justice, but it makes for less than compelling reading. It combines bald assertions ("There is good evidence that the effects of marriage are really the effects of prior commitment which leads to marriage") with a flawed attempt to challenge the methodology of the IFS study.

For example, in assessing marriage versus unmarried cohabitation, the IFS study has 'controlled for' the likelihood of pregnancy being unplanned and for the quality of the parents' relationship when the child is 9 months old. The CSJ characterises this as the IFS "stripping out very important things". The CSJ's point seems to be that unplanned pregnancies are bad for relationships (which may be true; I don't know, and the CSJ gives no evidence in support of the claim) - they say this:

"unplanned pregnancies tend to make people feel trapped and result in more fragile partnerships in the longer term. If people have not made a conscious, deliberate decision to commit, they are more prone to split up when things get difficult."

But this point, true or not, is a distraction and is no answer to the IFS study. When a factor is 'controlled for' by researchers, that means that you take into account its effects - in other words, you are asking: what is the effect of relationship type, once you take into account whether the pregnancy was planned or not? Both married and unmarried couples have both planned and unplanned pregnancies; the IFS study is asking whether the parents' relationship type affects relationship stability and child well-being regardless of whether the pregnancy was planned or unplanned.

Leaving all this aside, though, I still struggle to understand how the 'marriage is good for children' argument can be deployed as a reason to prevent same-sex couples from marrying. For those who think that marriage in itself brings benefits, would it not be sensible to encourage as many couples as possible to enter into marriage? While this may come as a shock, same-sex couples often have children (especially lesbian couples). And, what's more, they do not require medical assistance to achieve that, as Ms McDonagh implied at the talk. Lesbians are perfectly capable of having children with the help of a willing male friend; and, indeed, gay men are perfectly capable of having children with the help of a willing female friend (though I grant you that the input of that female friend is rather more onerous than the input of the male friend of a lesbian parent).

So same-sex couples are parents, and have been being parents for a long time. (Single homosexual people have been doing this too.) The law provides various mechanisms to help same-sex couples to be recognised as parents, whether through adoption, assisted reproduction, surrogacy arrangements or obtaining parental responsibility for a child once the child is born. Same-sex parenting is both allowed and actively facilitated by our law, and so it seems strange for those who think that marriage is important for children to say that the institution should be specifically closed off to same-sex parents. After all, the children involved bear no responsibility for who their parents are, and if marriage is about promoting children then surely all parents should be encouraged to marry, regardless of their sex.

The claim that same-sex marriage will have 'profound consequences':

The next claim that I want to consider is the supposed broader consequences of allowing same-sex couples to marry. On this point, I find the sheer scale of the scaremongering on the C4M website rather astonishing. Under the heading 'Profound consequences', it says this:

"If marriage is redefined, those who believe in traditional marriage will be sidelined. People's careers could be harmed, couples seeking to adopt or foster could be excluded, and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?"

It is hard to know where to start with this passage. Perhaps I lack imagination, but I am simply unable to see how anyone will be 'sidelined' by the fact that same-sex couples are allowed to marry. My first question is: from what will they be sidelined? And what will it mean to be sidelined? I may be wrong, but I would have thought that most people's interest in marriage starts and stops with their own marriage (if they are married or plan to marry) and with those of people close to them. What possible difference does it make to me whether two strangers are or are not married?

And then, 'people's careers could be harmed'. I suppose this is a reference to possible further cases like Ladele v Islington LBC. Ms Ladele was a marriage registrar who opposed civil partnerships on religious grounds (though perhaps ironically, given the current debate, her real objection was to gay marriage, which she equated with civil partnership). Put simply, Ms Ladele eventually resigned from her job because she felt unable to perform civil partnership ceremonies as her employer was demanding, and then sued for constructive dismissal. The Court of Appeal dismissed her claim, essentially on the basis that "the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation" (para 73).

While some may have sympathy with Ms Ladele, I simply cannot see that a person's views, religious or otherwise, should enable them to pick and choose which parts of their job they will do, particularly when that job is to perform a function of the state (being a marriage registrar). Suppose that a person were against inter-racial marriage - we would surely not countenance permitting them to refuse to perform such ceremonies and still keep their job. (Inter-racial marriage was illegal in many US States until Loving v Virginia in 1967. No doubt many people in those States objected to the change in the law which the US Supreme Court forced upon them, but the decision was still plainly right.)

Then there is the question of (presumably heterosexual) couples be excluded from adoption or fostering. Again, I struggle to understand this point. The rules on adoption and fostering are already de-coupled from heterosexuality and from marriage - a person or a couple can apply to foster or adopt regardless of these factors - so how will permitting same-sex couples the status of marriage affect that? I am told that there are examples of people being stopped from fostering or adopting because they oppose homosexuality; but whatever one thinks of those cases (if they exist), it is difficult to see that the marriage question actually makes much difference.

Next, schools will have to teach children that both heterosexual and homosexual people can marry. Well yes, okay, I'll semi-concede this one. It is true, I suppose, that if schools 'teach' about marriage they will need to point out that marriage is not sex-specific. (I may be deficient for not having gone to a religious school, but I cannot recall being taught about marriage in any significant detail when I was at school. I understand that the importance of relationships, including marriage and other stable relationships, is now included in the Personal, Social and Health Education syllabus, but I am not clear that this involves much detailed discussion about marriage per se.)

And then the polygamy argument. Without getting into the point that some cultures happily allow polygamous marriage (and indeed the law in this country will give legal recognition to a polygamous marriage performed in another country if the spouses move to the UK), this claim is a real red herring. It is really no different from the claim that allowing same-sex couples to marry would then, of necessity, require the state to recognise my marriage to a tree. Personally, I'm not sure that I see quite why we should not allow polygamous marriage, but that is beside the point. The 'thin end of the wedge' argument only works if the further examples are materially identical to the original claim, and multi-party relationships are, in some significant ways, different from two-person partnerships. Committed heterosexual couples and committed homosexual couples, on the other hand, have no material differences; that is one reason why discrimination on the ground of sexual orientation is prohibited by the Equality Act 2010, and the law has recognised that for a good many years now.

The claim that gay couples don't 'need' marriage because of civil partnership:

I'm going to deal with this one fairly quickly, because I discussed it on my blog a couple of months ago. The C4M website points out (correctly) that civil partnership offers the same legal rights as marriage, and then says (incorrectly) that this means that there is no need to 'redefine marriage' (as it describes the proposals). And then:

"It's not discriminatory to support traditional marriage. Same-sex couples may choose to have a civil partnership but no one has the right to redefine marriage for the rest of us."

Well, it is discriminatory to support traditional marriage if that means restricting it to heterosexual couples, just as it was discriminatory for some US States to bar inter-racial couples from marrying before 1967. Discrimination itself means only observing (and acting upon) a difference between two cases, but discrimination is prima facie wrongful when it is illegitimate to use that difference as a basis for the distinction. Our law identifies certain differences which are thought illegitimate (described in s 4 of the Equality Act 2010 as the 'protected characteristics'), including sex, race and sexual orientation. So the position that C4M advocates is undeniably discriminatory. In principle, that discrimination could be justified (and therefore be legitimate), but, for reasons discussed here and on my previous post, it is not, in fact, justified. (Put shortly, the discrimination is not a legitimate way of pursuing a legitimate aim - see, by analogy, the reasoning in Ghaidan v Godin-Mendoza.)

As for the second sentence, I'm back to this point: what difference does it make to one couple's marriage that another couple is also married? The effect of opening up marriage to same-sex couples is liberal and facilitative: it enables two people to choose to marry one another, but it does not compel anyone to do anything; and, at the same time, there are no consequences of this decision for anyone else's relationships (or, at least, no consequences not already arising from civil partnerships). Heterosexual couples are totally unaffected by whether homosexual couples marry or not. The claim that marriage should be restricted to heterosexual couples, on the other hand, is an attempt to impose one group's view on the way that other people can live their lives. I find more than a little irony in the fact that C4M is trying to lay claim to the "other people shouldn't impose their views on us" argument.

Debating the issues:

Finally, I want to say a brief word about a slightly odd remark on the 'about us' page of the C4M website. The authors call for a civilised debate (which I certainly agree with), and then say that they "will highlight any intimidation or intolerance shown to supporters of traditional marriage". I'm not sure what this means. I hope that the authors are simply trying to avoid unpleasantness, but the comment might be taken to imply that those of us who disagree with their views might find ourselves accused of intimidation or intolerance (again, some irony there perhaps). There was a little hint of this in some heckling from the audience at the British Academy talk, implying that disagreeing with the views of, in that instance, Ms McDonagh was, in itself, a form of intimidation. I would certainly be pleased to know that those who oppose opening marriage to same-sex couples consider this post to fall well outside intimidation or intolerance, even though I take issue with more or less everything that they say.

"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.