SUBMISSION
To
the Law Commission on Preliminary Paper 47: Family Court Dispute
Resolution
1.
This submission is from Stuart Birks, Director, Centre for Public
Policy Evaluation, Massey University, Private Bag 11222,
Palmerston North
2.
The objective of the Centre for Public Policy Evaluation is “To
facilitate the achievement of excellence in research in priority
areas and to develop its domestic and international links. The
focus will be on economic aspects of policies in a
multidisciplinary context.” The work of the Centre has
included, among other things, research and publications in the
areas of family law and law and economics.
3.
Regrettably, this submission will be brief due to time
constraints. Past publications from my Centre are also relevant,
as is some work in progress. A link to these is provided below.
Here I shall focus on the issues of the structure of, and
information presented in, the Preliminary Paper.
4.
The structure of the Paper suggests a management/administrative
approach to the operation of the Family Court. While this might
appear desirable for an assessment of Family Court processes, it
does in fact preclude focused consideration of several perceived
weaknesses in the system. In contrast, a standard planning
approach starts with a specification of wider aims, narrowing
down to specific details within that context. If you consider
only the details, there is no guarantee that wider concerns will
even be considered. Such a piecemeal approach also prevents one
from seeing the wider picture and developing a comprehensive
strategy. For example, there are issues of comprehensive coverage
of necessary skills (see paragraph 12 below); the impact of
process on unintended outcomes in terms, for example, of
disrupted child-parent relationships and institutional support
for parental alienation; the scope of research and ongoing
education; choice of outcomes indicators for monitoring the
impact of the Family Court; and specification of professional
standards and complaints procedures.
5.
The information presented in the Paper is worrying. It includes a
highly selective sampling of the literature, places too great an
emphasis on debatable claims, and misrepresents some of the
information in the source documents. Unfortunately this does not
signal that the final report will be scholarly, balanced and well
informed. Respectfully, I believe that the authors need to step
back from their material, keep an open mind and widen their
coverage of the literature.
6.
As an example, in paragraph 616 and footnote 299, there is
reference to a paper by Fergusson, wrongly cited as a 1988
publication. The paper is quoted in the footnote, “Collectively,
the findings suggest that single parenthood, in the absence of
social or family disadvantage, is not a factor that makes a major
contribution to childhood risk.”
7.
This statement refers to a statistical finding on the
significance of a variable. The interpretation of this finding is
a more complex matter, and must reflect the interconnectedness of
many determining factors. It is not realistic to simply treat
single-parenthood as being independent of these determinants.
Hence Fergusson states:
“The
implications of these conclusions are clearly that social
programmes and policies that are likely to be most effective in
addressing the needs of at-risk families and their children are
likely to involve multi-compartmental approaches that have
sufficient breadth and flexibility to address the wide range of
social, economic, family, individual and related factors that
contribute to the development of childhood problems.” (p.172)
8.
In the context of the Preliminary Paper, it is worth exploring
Fergusson’s finding further. Paper 47 devotes much attention
to the issue of violence. The prevailing approach is based on a
Duluth-type power and control framework. However, Fergusson says:
“The
findings of the CHDS suggest that physical child abuse and family
violence is frequently (although not invariably) embedded in a
broader social context that is characterized by multiple sources
of social disadvantage, family dysfunction and parental
adjustment difficulties. To a very large extent, the higher rates
of adjustment difficulties found amongst abused children from
violent homes appear to reflect the consequences of a generally
compromised and disadvantaged childhood, rather than the
traumatic effects of abuse or family violence on personal
adjustment.” (p.171)
9.
This suggests that the approaches described in the Preliminary
Paper are inappropriate. The descriptions are:
·
on programmes for respondents: “The main aim of the
programmes for respondents is to prevent further violence. To
this end, the programmes aim to increase the respondents’
understanding of the context and effect of domestic violence, in
particular the effect it has on victims and on children exposed
to violence…The course aims to encourage respondents to
develop non-violent conflict resolution skills.” (para.200)
·
on programmes for protected persons: “Programmes for
adult protected persons aim to empower them to deal with the
effects of domestic violence by informing them, supporting them,
and building their self-esteem.” (para 207)
·
and on programmes for children: “Programmes for children
who have been subject to, or exposed to, violence aim to help
children develop their self-esteem and confidence, to help give
them a realistic view about domestic violence, and to encourage
them to express how they feel about the violence that they have
experienced in their lives.” (para.209)
10.
Moreover, we see in Fergusson:
“In
recent years there has been increasing interest in the issue of
interparental violence and its effects on children. The popular
view of interparental violence is that it is an exclusively male
problem that has severe and damaging consequences for the social
adjustment and development of children. In general, the findings
of the CHDS do not support either of these assumptions.”
(Fergusson p.164)
And:
“…interventions that focus on family violence in
isolation from the social and family context within which the
violence occurs are likely to be relatively ineffective in
addressing the problems faced by children in families in which
violence occurs.” (Fergusson p.166)
11.
In other words, the Preliminary Paper uses a paper to support one
position, when in fact it not only does the opposite, but it
discredits the approach presented elsewhere in the Preliminary
Paper.
12.
The above example indicates that it is necessary not only to use
a wide range of sources, but also to understand the material
included in them. This might require a wider skills base than the
Law Commission is applying to this project. Ian Shirley signaled
a general problem in this area when he said:
"A
related issue concerns the expertise of those who intervene in
the lives of children and families and here it is often assumed (in
the social services at least) that a kind heart, and a passion
for the job, provides one with the credentials to practice.
Many of those who work with families and children do not have the
knowledge base or skills to make the decisions with which they
are faced day after day – decisions that can literally mean
the difference between life and death – it is
important to state in this respect that I am not confining my
comments to social workers – the time has clearly
arrived where we need to question the knowledge base and skills
of Family Court Judges, Paedeatricians, Lawyers, Psychologists
and the range of “professionals” who intervene in the
lives of families and children – as in the case of the
scientific traditions, a single disciplinary-based form of
education and training is inadequate to deal with children as
individuals, as members of a family, and as active participants
in the neighbourhoods and communities to which they belong."
(Shirley, 2001, pp.43-44)
13.
It is worrying that Appendix A of the Preliminary Paper,
which lists projects and research on the Family Court, specifies
“in house” research but for one exception, namely the
Children’s Issues Centre. I must declare a special interest
in that my own Centre for Public Policy Evaluation has been a
source of several collections of papers, other publications,
conference papers and submissions that are relevant. The Law
Commission has acknowledged the existence of at least some of
these in the past, but has chosen to ignore them even where they
present evidence refuting Law Commission claims. There is a large
body of literature that can be found through that material,
consideration of which can only strengthen the Law Commission’s
analysis. The Centre’s publications and conference papers
can be found at: http://econ.massey.ac.nz/cppe/papers/index.htm.
14.
Henaghan and Atkin (2002) is another recent New Zealand
publication containing much useful information.
Fergusson D M (1998) “The Christchurch Health and Development Study: An Overview and Some Key Findings”, Social Policy Journal of New Zealand, 10, 154-176
Henaghan M and Atkin B (eds) (2002) Family Law Policy in New Zealand, second edition, Wellington: LexisNexis Butterworths
Shirley I (2001) "Evidence-based policy and practice - what works for children?" in Birks S (ed.) Proceedings of Social Policy Forum 2001 - Child and Family: Children in Families as Reflected in Statistics, Research and Policy, Issues Paper No.11, Centre for Public Policy Evaluation, Massey University, Palmerston North, at: http://econ.massey.ac.nz/cppe/papers/cppeip11/cppeip11.pdf