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June 17, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This continues my previous post on the British study that purports to find no discrimination against fathers in such family court matters as custody, parenting time, contact and the like. I linked to Glen Poole’s response which was a thoroughgoing take down of the claims made by the study’s author, Professor Maebh Harding of the University of Warwick. Harding’s description of the study’s findings include assertions that fathers’ applications are “overwhelmingly successful.” To that Poole points out that fewer than half of fathers are permitted to have overnight contact with their children. He went on to say that, the only way that can be considered “success” is if the culture hugely devalues fathers, a point I’d call uncontestable.

Harding’s larger claim is that British family courts don’t discriminate against fathers. Poole responded that what the courts do reflects a society-wide discrimination against fathers as demonstrated in countless ways. That is, the courts may follow their own rules without discriminating, but since those rules largely rubber stamp societal inequality, they can only be unfair and discriminatory. He might have added that they’re bad for kids too.

Probably due to space restrictions, Poole didn’t conduct a detailed critique of the study, but a closer look reveals that it cannot be used for the propositions for which it’s already been cited, both by the press and apparently by Harding.

Here again is the article reporting on the study and quoting Harding (PhysOrg 6/3/15). The first criticism of the study and the article reporting on it is fairly obvious. Consider, for example, the article’s lead sentence:

There is no evidence that family courts in England and Wales are discriminating against fathers because of gender bias, a new study by the University of Warwick and funded by the Nuffield Foundation has found.

Then read Harding’s remarks. From that it would be fair to conclude that (a) two academic researchers (b) had conducted a study that (c) demonstrates that family courts in the U.K. don’t discriminate against fathers (d) in matters pertaining to child custody, parenting time, visitation and the like. Indeed, my guess is that’s exactly the conclusion that the article and Harding want readers to draw. But even a casual glance at the study itself shows (c) to be incorrect.

On page eight of the study we find this:

It should be noted that our findings about the use of different Section 8 orders and the typical time patterns orders are not statistically representative of the general practice in 2011.

And again on page 133, the authors state this:

Our selection of case files was not designed to generate results which could be generalized and portrayed as typical practice of all County Courts in England and Wales in 2011. Such a statistically robust finding could not be achieved without using a much larger, statistically representative sample of case files;

In other words, the study is not representative of what happens in county courts in the U.K. It’s not meant to be and the authors make that abundantly clear. Their sample is too small and it’s not representative of the U.K. population, U.K. county courts, the applications that are made there or the outcomes of those applications.

But, as I predicted in my last piece, the simple fact that this study has no applicability beyond the confines of the cases selected and analyzed, hasn’t stopped the article and, far more astonishingly, Harding herself from strongly suggesting that which is not true — that the findings apply to British courts ruling in Section 8 cases generally.

(At this point, I must give Harding the benefit of the doubt. Her statements in the PhysOrg article are far less scrupulous than is her study, leading to the possible conclusion that the article quoted her in ways that suggest conclusions Harding herself doesn’t draw. Those quotations certainly encourage us to conclude what I say above, but it may be that the article misrepresents Harding’s own thoughts. The study itself reflects a sincere, if sometimes misguided, effort by the researchers to understand their subject. That said, I find it remarkable that nowhere in the PhysOrg article did Harding simply say “our findings can’t be applied to U.K. courts generally,” or words to that effect.)

Second is the authors’ notion of “success.” Glen Poole of course destroyed that in his Telegraph article, but I’d like to add one thing more. Harding and the study itself make much of how “successful” parents are in these courts. You might think that, to be “successful,” an applicant who requests a certain order by the court must actually be granted either that order or something close to it. So, for example, for a father who requested an equal parenting order, “success” might mean a 50/50 order of parenting time, but it could also mean a 40/60 order.

But Harding and Newnham’s definition of “success” is, shall we say, considerably more expansive than that. Page 62 of the study explains:

The court made some sort of order for the applicant in 151 out of 174 cases; an overall ‘success rate of 82%.

That’s explained further in footnote 15.

We recognise, of course, that applicants did not always get legal recognition of the exact practical arrangement they sought.

Stated another way, if Dad applied for sole custody and was only granted contact every other weekend, Harding and Newnham placed his name in the “success” column because the court “made some sort of order” on his behalf. Given that “definition,” it’s no surprise that the researchers were able to find such a high rate of success. Indeed, under that definition, if Dad and Mom both sought sole custody and Mom got it but Dad only got every other weekend visitation, both Dad and Mom would be considered “successful” by Harding and Newnham. So any remarks they make about “success” must be taken with a grain of salt the size of a compact car.

Telling as they are, those two criticisms of Harding’s and Newnham’s work are the good news. Tomorrow, I’ll deliver the bad.

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