I then will look at some of the fallacies and they relate to what I call, and have written about in the past, that I labelled myths of uniformity.
The fi rst one is a myth that social science is a unitary entity.
But when you look at social sciences there are many disciplinary orientations. There are very diff erent schools and paradigms with very diff erent assumptions and methods.
I also am very interested in topics related to continuity versus change and what are the sources of continuity. What happens is often the continuity, because we change the context in a way that imposes continuity and so the way in which decisions about children’s living arrangements post separation may actually run the risk of becoming self-fulfi lling prophecies.
I will also look at what I call the ‘fads’. There are topics like bonding and attachment that have become very prominent and attract a lot of interest, and yet there is a counter- veiling argument that says it is very diffi cult to show evidence of really strong stability or predictability around attachment. It is certainly misleading if you take a single study or a small set of studies. I am going to studiously avoid ad hominem argument because that generates more heat than light! There are some studies that get a lot of prominence, but it is not so much the science that is infl uencing the way people think about a topic but it is the popularised versions of the science. Often, single fi ndings are taken out of context and then they are amplifi ed in terms of their value. I think this is really problematic.
I will be ending my paper with a consideration of the nature of judgement.
Social sciences are a constantly evolving area of study—how can the courts better distinguish between the facts, fads and fallacies that you refer to?
Using the conventions and rules of presentation of evidence and refutability of evidence is important. Simply because someone presents as an expert, I think it often gets to a point of overlooking the extent of the
contestability of the information being provided.
The courts need to be very careful in the way social science evidence is used and introduced.
They need to be vigilant to where fallacy and fad are being substituted for fact.
And they need to take some of the studies, particularly the single studies, with a grain of salt.
The courts need to see the diff erence between studying something in terms of processes that apply to a group and trying to apply that in an individual instance—they are very diff erent exercises. You can get a general view of the processes that apply to the group of children in a particular situation as opposed to what will apply to a particular child within a particular family. This is where while the prime consideration is the capacity of judicial offi cers to weigh the evidence and make really sensitive judgements, knowing that they do not have the wisdom of Solomon, but they can only do the best in the circumstances that confronts them at the time.
Are there present examples of social sciences being used in family law cases where you think the facts may need further scrutiny?
Yes, there are: bonding and attachment are a current one. I think parental alienation syndrome is another one where, when you actually delve into it, there has not been a lot of rigorous replication and formation of a very solid body of evidence, and yet it is a very tempting thing for lawyers and parents to assert alienation has occurred. You can take another lens that says alienation in some instances, particularly where family violence has occurred, is an expectable response. The behaviours are open to a range of interpretation.
It is also interesting to consider the weight put on parental, teacher or expert opinion as opposed to what children tell you of their experiences. They will often tell quite a diff erent story—there is literature in the fi eld of child psychopathology that shows parents and teachers may not be good predictors or good classifi ers
of behaviour and that children will have a diff erent view, and information, of what is happening in their lives.
It really goes to the law applying the same rigorous standards that it uses to evaluate other evidence when it considers the weight to place on social science evidence.
Where is the future of social sciences in court proceedings headed?
I think there will be a lot more caution about the way in which social science information is used and ensuring that it is used in a manner that does not violate procedural fairness.
“Hopefully I will have opened their eyes to the bigger picture direction of where
Australians have been, where they are and
where they’re going in relationships. I think where we’ve been is much diff erent to
where we’re headed. If you get that bigger picture context then
it’s much easier to deal with the churn we can expect in this sector over the next ten years.”
– Bernard Salt
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