Penelope Leach: Fathers really matter, but when you talk about shared parenting, there’s an horrible tendency to see children as…like dinner; I’m going to share it. So we get situations where children are spending a week in Mum’s house and a week in Dad’s house and all kinds of horrible arrangements. I call them horrible because we do know that they are desperately wrong for children who need the security of a place called home and who when very little shouldn’t be taken away overnight from what is usually the mother, the person they’re attached to.
Damien Carrick: Now, the idea that young children under four should not spend nights away from their primary attachment figure, usually their mum, is a hotly contested one, and Penelope Leach’s position has reverberated throughout the UK and around the world. To support her claim, Penelope Leach quotes 2010 Australian research. That report’s lead author is Jenni McIntosh, an adjunct professor at La Trobe University. She’s currently on leave. One of her co-authors is ANU Associate Professor Bruce Smyth. So, does Bruce Smyth think their work has been correctly represented in Penelope Leach’s book?
Bruce Smyth: No.
Damien Carrick: Is that a cause of concern for you?
Bruce Smyth: Very much so, and it’s a cause that I know Jen’s been in contact with Dr Leach, and we’re currently working through a process to make sure that the findings and research is being reported accurately in the book.
Damien Carrick: Can you clarify for me what you think the misquote is, or the misrepresentation is?
Bruce Smyth: I read the book last night, and one sentence that leapt out at me, which is, ‘Findings strongly suggest that shared care that includes spending nights or even a single night at a time away from home and mother is seldom in the best interests of children under four years of age.’ Our findings don’t show that, we never said that, so I’m not quite sure how you reach…for the Australian study to reach a conclusion like that.
Damien Carrick: More from co-author Bruce Smyth later. So, what does the McIntosh report really say about overnight stays for children under four? It’s a crucially important question in family law. Well, it seems that depends on who you talk to. Here in Australia two leading experts aren’t surprised that Penelope Leach got the wrong end of the stick. Patrick Parkinson is Professor of Family Law at Sydney University, and he’s also President of the International Society of Family Law. Judy Cashmore is a developmental psychologist and she’s an associate professor in socio-legal research and policy at The University of Sydney. Other social science experts have also raised red flags about the interpretation of research. Judy Cashmore is also one of 110 expert signatories to a document titled ‘Social science and parenting plans for young children: A consensus report’.
Judy Cashmore: It was written by Dr Richard Warshak, who’s a US academic at The University of Texas in the department of psychiatry. He’s a very well respected academic who’s been involved in the debates about early childhood development and particularly the debate about overnight stays with fathers since the early 2000s. Why was it written? Because there has been a great deal of concern, I think, about the way in which the research has been misinterpreted and used to support suggestions that it’s dangerous or harmful for children to stay overnights with their father before the age of three. And that conclusion is not well substantiated; it’s not supported by the research evidence.
Damien Carrick: So that’s the take-home message from this expert consensus report, that research which suggests that children should not have overnight care with the dad or the absent parent because it could be harmful…there’s not enough evidence to support that conclusion.
Judy Cashmore: Yes, that’s right.
Damien Carrick: What does the Richard Warshak consensus report have to say about research that currently is very influential here in Australia; it’s research by adjunct professor and clinical psychologist Jen McIntosh, and it’s on this issue of overnight stays for very young children.
Judy Cashmore: Yes, that research was an attorney general’s report based on the longitudinal study of Australian children, but only a small proportion of those children were actually in separated families, so it’s not the 10,000 children but a much smaller group of children comparing those who had different arrangements. Basically what it was suggesting, using some of the measures that were not necessarily designed for that purpose, is that children were more distressed or more irritable if they were in a shared or overnight stay arrangements with their fathers before the age of four, and that research has been challenged on the basis of the research design, the sampling and going beyond the conclusions or the data analysis.
Damien Carrick: Now, Patrick Parkinson, if I can bring you in here, I understand that Jennifer McIntosh has said in recent times that she never suggested that children under three should never stay overnight with the father. What’s your view of the research and how it’s been interpreted and repeated and sent out into the world?
Patrick Parkinson: The first question is what does the research itself say. I think the research is quite equivocal with regard to children under two, and I’m referring here to the McIntosh research in particular. Clearly there are some children who do not handle overnight stays with their fathers well, and there’s all sorts of reasons for that. If there’s high levels of conflict between the parents, if the child doesn’t know the father, they’ve never lived together, for example, then some children are going to have difficulty with overnight stays. So what the research does tell us is what a lot of other research tells us, that children sometimes do not manage transitions between their parents terribly well, but it is not the basis for any blanket rule about children spending overnights with their fathers.
Damien Carrick: What specifically do Warshak and the other 110 people who endorse the paper, specifically what conclusions do they reach about that McIntosh research?
Patrick Parkinson: Well, they don’t just focus on the McIntosh research; there’s other research by Tornello and colleagues in the States which has also looked at these issues. What the paper’s really saying is, ‘Look, there is a broad consensus from a large body of research that children need both parents, children do fine in childcare, for example, away from their primary carer, and there is this research which appears to say the opposite, but we need to understand its limitations and not to draw conclusions from it, which contradict the rest of the body of research out there.’ That’s essentially what Warshak and others are saying.
Damien Carrick: Now, if course, it’s important because it’s influential. This sort of material is used in decision-making and negotiations when it comes to the care and responsibility arrangements for children. Patrick Parkinson and Judy Cashmore, you are the joint authors of a just-published article in Psychology, Public Policy, and the Law titled, ‘The use and abuse of social science evidence in children’s cases’. What role does this social science research that we’ve just been talking about play in our family court system here in Australia?
Patrick Parkinson: Whatever Professor McIntosh has herself said, her work has been widely understood amongst family lawyers and their clients to represent a view that it is not wise to have young children spending overnight time with their fathers. So that’s been the take on it, but it’s important to emphasise that first of all Dr McIntosh herself hasn’t said that’s what her research shows, secondly the body of research doesn’t show that, and so there’s been a misunderstanding of what that research says and what all the other research on this area shows us.
Damien Carrick: Judy Cashmore?
Judy Cashmore: Yes, I think there’s an issue here. There’s a responsibility both on social scientists to communicate their research very clearly and to correct any misunderstanding, and secondly a responsibility on those who are the receivers and users of that research in courts and decision making, to make sure that they are intelligent consumers of that research.
Damien Carrick: And do you think she’s done everything she can to make sure that her research has been correctly understood and the context of the research has been correctly understood by people in the courts and professionals in the area?
Patrick Parkinson: Just in the last couple of months Dr McIntosh has published a joint article with two leading experts in the United States, Joan Kelly and Marsha Pruett, which is extremely helpful in clarifying not only what Dr McIntosh’s own position is but also what is a shared view amongst three leading experts. And what it says is that there is nothing inherently problematic about overnight stays with fathers. That’s a very important clarification. But it sensibly says, ‘We’ve got to look at each individual family.’
Damien Carrick: How well do you think lawyers and judges understand the research which underpins the conclusions reached by report writers, be it Warshak and the 110 experts or McIntosh and her collaborators?
Patrick Parkinson: I think it’s fair to say that Jen McIntosh’s own work has attracted very widespread attention in the family law community, certainly in Australia, but I think also beyond, because it’s fed into a narrative that mums should be the only ones looking after kids and mums should be the gatekeeper to spending any time with Dad. So, it’s attracted, I think, a lot of attention because it’s fed into a broader sort of point of view. I don’t think that it has been widely understood amongst judges and lawyers that that is just one view.
Damien Carrick: Is it also that perhaps we need to be looking not at just the experiences of children as reported by researchers when they’re having overnight care but the impact of that overnight care in the longer term in terms of strengthening relationships, investing in their children and having a deeper relationship with their children?
Judy Cashmore: I think that’s absolutely critical, and that’s why there is so much concern about this, that if you cut fathers out of the picture very early on then it’s more difficult to build up their relationship later. If they haven’t had that experience of looking after the child and don’t feel confident, then that needs to be built up over time. Like any of us, we need a scaffold to help our learning and our transitions, and so do the children, too.
Damien Carrick: These debates, as they swirl around the zeitgeist, do they become quite important in shaping the parameters of what people will ask for in negotiations, what people will ask for in court cases if they reach that point? Is that part of the issue here, that they really help determine the parameters of what becomes possible?
Patrick Parkinson: Yes, certainly, and there are many, many situations where Mum will come in and say, ‘No overnight time for Dad because we understand that children were being harmed by having overnight stays with Dad under three.’ You’ll have Dad saying, ‘But I want to have a relationship with my kids.’ And so, I think what we are experiencing now is unnecessary conflict in the courts and between lawyers based upon gross misunderstandings of the research. So let me be clear that neither I nor, much more importantly, the psychologists who are expert in this field are suggesting that equal time for one- or two-year-olds is remotely sensible; it’s not. Children need stability, they need routine, they need a primary care giver. So we’re not talking about equal time, we’re not talking about even nearly equal time; we’re talking about, say, one overnight a week, or if there’s a strong bond between father and child maybe, you know, two overnights, whatever. But we’re not talking about equal time or shared parenting here. We’re just talking about building or maintaining that bond between a non-resident dad and his child.
Damien Carrick: Patrick Parkinson, and before him Associate Professor Judy Cashmore. The pair also have concerns about how the McIntosh research has been adopted by bodies such as the Australian Association for Infant Mental Health, which cites the McIntosh report to support the general proposition that infants under the age of two should not be separated overnight from primary carers.
I’m Damien Carrick and you’re listening to the Law Report on ABC RN, ABC News Radio and Radio Australia. Well, how do the authors of the 2010 McIntosh report respond to the concerns that we’ve just been hearing? One of the authors is Associate Professor Bruce Smyth, ARC Future Fellow at the ANU College of Arts and Social Sciences.
Bruce Smyth: We’re surprised by the amount of attention our study’s received, and the extent to which the findings have been mangled and misinterpreted, and I think the findings have been interpreted in a very black and white manner; they’ve been boiled down to a crude, divisive gender message: any overnights damage children. The truth is, we’re puzzled by this; we’re not sure why they’ve been interpreted this way and why they’ve been boiled down that way. Those who’ve actually read the original government report will know that we’ve never said that, and we’re surprised that no one’s picked up on the glass-half-full message that once kids turn four they’re actually able to cope with a variety of parenting arrangements.
Damien Carrick: Some people would say, though, that the study also participates in the gender wars by maybe overreaching with the data and maybe seeing everything through the prism of attachment parenting, which is perceived by some people as being an argument or a theory put forward by mothers at the expense of fathers.
Bruce Smyth: Well, we’ve tried to get in the shoes of children and look for signs of stress, and we’ve tried to take a very dispassionate investigation into the issue. We know that science moves slowly, we know that some people have strong views and are tempted to over interpret the findings, but at the end of the day we’re trying to get into kids’ shoes and get a sense for what the experience of shared times like when you’re very young.
Damien Carrick: But there’s also the longer term issue of keeping fathers in the loop and keeping relationships with fathers alive, and that’s perhaps as important a consideration as the stress experienced in the moment.
Bruce Smyth: Very much so, and father absence is a real problem around the world. Many dads are no longer in children’s lives after a divorce for a whole host of reasons. You know, that’s a concern for us too, and this debate around the stability of relationships versus the stability of place is a really tricky debate, and it’s been raging conceptually for a long time now, and now we’ve injected some data into that debate.
Damien Carrick: There’ve been a number of new publications in 2013 and 2014. The latest one, the peer-reviewed version of the 2010 report, ‘Overnight care patterns following parental separation: Associations with emotion regulation in infants and young people’, what does that actually say on this issue of overnight care?
Bruce Smyth: It’s a much cleaner version of the 2010 report that’s been distilled and boiled down, basically. It’s the same finding; that is, when infants and young children under four spend a lot of time between two homes, they show signs of stress.
Damien Carrick: Even one night overnight care?
Bruce Smyth: Well, we were looking at the high frequency group, and a lot of people have jumped in and said our key finding is that any overnights, even one night, damages children, and that’s just not true.
Damien Carrick: That was never there in the 2010 report and not there in the 2013 report?
Bruce Smyth: That’s right.
Damien Carrick: What’s your view of the Richard Warshak ‘Social science and parenting plans for young children: A consensus report’, which was published in the journal Psychology, Public Policy and Law?
Bruce Smyth: I’m really surprised by the consensus report. In fact, all three of us are very surprised by that report, and I guess the key question for me is, why has the scientific method seemed to have failed in this particular instance? Why, when a piece of research comes out, rather than replicate or have a discussion with the authors or go and collect some data and see what the findings look like, do you actually write a lit review and then send it off to a whole bunch of people saying, ‘Do you agree with my lit review and my conclusions?’ It’s a very unusual way; it’s not the way science normally works. A petition approach isn’t science. I’m not quite sure why Dr Warshak didn’t just publish the review and let it stand on its own two feet. There are question marks about whether the piece was peer reviewed, which is of some concern, and we have no idea how many people Dr Warshak wrote to, exactly which version they saw, whether they agreed or not… And his qualification, and not everybody agrees with every detail, we wonder whether might no one have agreed on some of the points and whether it’s a true consensus. So, we’ve got a lot of concerns about that particular piece.
Damien Carrick: What’s your view of the just-published article in Psychology, Public Policy, and the Law titled, ‘The use and abuse of social science evidence in children’s cases’, by Judy Cashmore and Patrick Parkinson?
Bruce Smyth: Well, obviously I’m not going to get into a public slinging match with Australian colleagues here, but basically that piece really just comes to the conclusion that it’s not easy to come to some consensus, and to translate research findings into, call it outcomes and policy decisions.
Damien Carrick: It’s, and I think I’ve got the quote but I’m not exactly sure, but, ‘Poorly constructed research, research which is agenda-driven, research which is misrepresented and research that goes beyond the data fails to illuminate the pathway to a decision that will work best for the child; worse, it can lead to detrimental outcomes for children.’ Do you agree with that?
Bruce Smyth: There are several commonalities with people who’ve been critiquing the research. I’d have to say that if there’s innuendo that our research isn’t quality research we’d go back to the scientific method, which is basically why don’t people collect the data or replicate the data with the LSAC data that we used…
Damien Carrick: ‘Research that is misrepresented and research that goes beyond the data.’ I think that’s probably the key point. I don’t think anybody’s saying the research was dodgy.
Bruce Smyth: Well, the issue of researchers controlling how people use the data and what their findings are and what the implications of those are, alas, that’s something that researchers have very little control over, which is probably a good thing in the end.
Damien Carrick: Don’t the authors, yourself and Jennifer McIntosh have a responsibility when research gains a certain currency out in the world, and a certain widely understood meaning to make sure that that gels or is consistent with what you put out there?
Bruce Smyth: Well, the recent piece in the Journal of Family Studies attempts to clarify exactly what we’ve found. We’re also currently writing another piece that looks at ten falsehoods around the way in which the data have been interpreted and reported. So we’re kind of doing our bit to make sure, in terms of research translation, that the messages are very clear, but at the end of the day there are still limits as to whether you can stop people interpreting results a certain way or cherry-picking things to suit their own ideas.
Damien Carrick: There’s been the use of the research in the courts, and we might come to that in a moment, but do you think that the Penelope Leach use of your work goes to the wider issues, why Warshak and Cashmore and Parkinson feel a strong need to put out into the world what their views are of the 2010 report? Doesn’t it go to this issue, that the work has been, as you would see it, widely misrepresented?
Bruce Smyth: Yes, that’s true, but I mean, we’re very happy for people to challenge our methods, look at other explanations for the data, which is the way science moves forward. I guess our big concern is why simply rail against the findings because they don’t like the results, as if we had no right to ask the question. We think there are elements of that with our research and we firmly believe that that needs to be challenged and resisted; otherwise we’re just stuck in a position of where we have no data, wild anecdote flies around in family law frequently and we’re left in a position of ignorance.
Damien Carrick: I’ve been told by a lawyer who practises in the courts that the take-home message of the 2010 report is that it’s often used to argue against any overnight stays for children under four. Is that a concern for you?
Bruce Smyth: It is a concern insofar as this was a small study, there are a number of limitations that mean we are very keen for people to replicate. Bob Emery and Tornello in the US have replicated and come up with very similar findings, which is heartening, but there are very few studies in the world that look at this. There’s no doubt that parents and policy-makers and decision-makers need to resolve problems in front of them right now, and there is a temptation to over interpret and push these data too hard, which is certainly something that we’re mindful of.
Damien Carrick: So it’s a concern for you if people walk into courts and say there should not be overnight stays for children between zero and four?
Bruce Smyth: Absolutely.
Damien Carrick: Associate Professor Bruce Smyth, one of the co-authors of the 2010 McIntosh report. Sydney lawyer Tom Reeve is a partner in charge of family law and immigration at the Marsdens Law Group. He sees the 2010 McIntosh report in the wider context of the pendulum swings in family law.
Tom Reeve: Well, the earlier report was, I think, responding in part to the earlier 2006 reforms which introduced the equal Shared Parental Responsibility bill and changed the whole ball game in family law. So the social science that McIntosh authored was then, I think, seen and used as a way of preferencing and preferring attachment theory based social science, which, putting it bluntly, is putting the relationship between mother and child ahead of the need to build a bond between father and child.
Damien Carrick: Jen McIntosh is adamant that she has never, ever said never to overnight care. But why do you think there’s a perception that this is what the research says?
Tom Reeve: Because that’s how it’s used, and if you put your name to something and know that it’s being used in that way, then perhaps you have some responsibility for it.
Damien Carrick: How so?
Tom Reeve: Because at the coal face of family law we’re not about to analyse and involve ourselves in a detailed discussion of how the data has driven particular conclusions in the report. You’re lucky to have practitioners who are au fait with the headnote. It’s a bit like the Gonski Report, everybody knows about it, but nobody’s read it.
Damien Carrick: Do you think, though, this is a research translation issue, it’s not about the research itself, it’s about the way it’s being used or spread out into the world?
Tom Reeve: Maybe, and I mean, Warshak, when he analyses the data, goes through the process of saying, ‘Well, some of the conclusions don’t actually follow from the data.’ It could be a problem in translation, but I think it’s more fundamental than that, and it’s simply that at the busy end of practice we look for a quick, easy, readily usable pitch that comes from a report. And her report lent itself to that, and it pushed the pendulum in a particular direction.
Damien Carrick: It’s really interesting, because of course lawyers are hired guns, and they’ll use whatever weapons they have, and that can include putting forward arguments on behalf of one client one day in court and then the next day, in the next courtroom, arguing the exact opposite. So, don’t the lawyers need to take some responsibility for the arguments?
Tom Reeve: Yes, yes, of course, and my comments make it sound like I’m only acting for people who have got, you know, ‘Men have rights too’ on tee shirts when they come into my office. But of course the other half of the equation is that you’re very often going to be in a position where you want to use a social research of that sort to assist the interests of your client, and if your client is a client who has a particular attitude towards overnight time and doesn’t want it, then social science that McIntosh was the author of previously was useful.
Damien Carrick: Tactically, do you think that sometimes when overnights are being discussed, maybe in pre-trial negotiations for, say, interim orders, do you think sometimes there are tactical reasons for them not being granted at that early stage, or not being agreed to at that early stage?
Tom Reeve: Of course, that’s what you’re paid to do.
Damien Carrick: So, maybe you don’t play ball in terms of overnights because you want to use it, or any other kind of concession as leverage to secure a better overall outcome down the track for your client; you don’t want to give away too many concessions at an early point?
Tom Reeve: It’s in your mind. Your interest is in improving your client’s position, and of course what you haven’t ventured into is the whole ugly truth that the parenting arrangement will impact on child support and will also be highly relevant to the distribution of property. Now, very often you have all three of those things in the mix in a family law case, especially when expensive lawyers are at the party, and those tactical considerations are very much part of the agenda.
Damien Carrick: In terms of Family Court processes, you have family reports and they’re written by family consultants. Do you think that assumptions about research can be embedded, even subconsciously, even under the surface, into the way family consultants build their family reports and the conclusions they come to?
Tom Reeve: Absolutely, and I think the whole problem with this debate is that what is embedded is either embedded openly and explicitly, and therefore you’ve got a whole range of legal problems about whether it’s admissible or not, and is it actually evidence, or is it embedded implicitly simply in the choice of language we use? For example, referring to things like attachment theory, which has a particular meaning and significance and social science related to it, but nowhere appears in the Family Law Act.
Damien Carrick: Do you think that some lawyers and judges in the Family Court subscribe to attachment parenting more than others?
Tom Reeve: I do, and I think some consultants are more wedded to attachment theory than others. So, short answer, yes.
Damien Carrick: Does that mean that there will be inconsistent outcomes dependent on which judge you appear before, and maybe which lawyers are arguing your case or what have you?
Tom Reeve: Yes.
Damien Carrick: Tom Reeve, these issues around overnight care, they’re very much in the zeitgeist at the moment because UK developmental psychologist Penelope Leach’s new book Family Breakdown has just been released, and she’s said that even one night a week can lead to damage to a child. What’s your view of that kind of view being put out in these kinds of very well-selling books?
Tom Reeve: I think it’s really problematic.
Damien Carrick: Penelope Leach’s book quotes Jenni McIntosh and her co-authors, the 2010 research, but it’s difficult, because again McIntosh says she’s never said never. But the research is now being used to argue for a particular line on the other side of the world. What does that say to you?
Tom Reeve: Well, it says to me that the job just got a bit harder when you represent the next father in court who wants to have time with an 18-month-old child, because you’re going to turn up at an interim hearing and you’re not going to have a family report writer there that you can ask any questions of or cross-examine. You won’t have a choice; you’ll be met with a particular judge who may or may not be in favour of a certain view, and you’ll be confronted with the comment, ‘Well, doesn’t the social science say something about this, Mr Reeve?’ And to be able to then sort of combat the way the tide is flowing at that point is very difficult. So you have to have the tools at your disposal to effectively argue back. Yes, I think what the profession should be saying is, ‘Look, the social science shouldn’t be used in that way.’
Damien Carrick: Tom Reeve, partner with Marsdens solicitors in Sydney. That’s the program for this week, thanks to producer Anita Barraud and to audio engineer this week Brendan O’Neill. I’m Damien Carrick; talk to you next week with more law.