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.

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.