Abstract
This article examines the use of social science research in case level decision-making and adjudication in public and private family law proceedings from the perspectives of judges and lawyers in England and Wales. To provide a context for our analysis, we first review a limited, but nevertheless important, body of international literature concerned with the place of social science in the family courts. We then turn to our empirical material, drawn from a scoping study commissioned by the Nuffield Foundation, to inform the design of a new family justice observatory for England and Wales. The study found that judges and lawyers in England and Wales described similar obstacles to the use of social science evidence at a case level as their international counterparts, despite differences in jurisdictional rules and norms. Specifically, they were concerned with due process and the admissibility of research evidence, as well as the potential for advocacy bias, given the contested nature of social science evidence. Questions about how to apply population data to the specifics of an individual case were also raised. However, analysis also revealed further contextual obstacles in England and Wales resulting from radical changes to the family justice system, following comprehensive review in 2011. Judges and lawyers indicated that a reduction in experts and far shorter timescales for the completion of public law cases, together with an influx of self-representing litigants in private law, have created a context that is less, rather than more receptive to interdisciplinary knowledge, including research evidence.
Highlights
It is widely acknowledged that questions concerning the best interests of children, which are at the centre of family court cases cannot be answered without drawing on knowledge over and above legal statute and rules
In the sections that follow we revisit the perspectives of judges and lawyers in England and Wales regarding the use of social science evidence in the family courts, addressing a significant gap in the published literature
Based on the analysis of new empirical data presented in this paper from England and Wales, it is possible to conclude that across a number of different jurisdictions, similar issues are raised about the potential for the misuse of research evidence in the context of adversarial proceedings, coupled with anxieties that social science evidence does not deliver the certainty that the courts pursue when making highly consequential decisions for children and families
Summary
It is widely acknowledged that questions concerning the best interests of children, which are at the centre of family court cases cannot be answered without drawing on knowledge over and above legal statute and rules. We draw on a limited, but important international literature to outline the range of obstacles that may stand in the way of application of robust research in the family courts These obstacles fall into the following three categories: i) a concern with due process and the potential for bias in the context of adversarial family proceedings; ii) challenges presented by the contested nature of social science research as evidence; and iii) a lack of clarity about how social scientific knowledge which is based on populations or sub-populations, can be applied to the specifics of a single case. 239), the following set of statements capture the potential contribution of the broader social science research evidence to family court decision-making: providing the fact-finder with background knowledge about what children need for healthy physical and psychosocial development; pointing to factors that might be important in determining the child’s “best interests” in a specific case; illuminating the issues to be considered in making decisions in children’s cases. Whereas there has been some debate about the qualifications of court instructed experts, in regard to this broader cast of family court practitioners, there is considerably more disquiet about the introduction of research evidence in case level decision-making and adjudication
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
