The arrival of no-fault divorce represents an opportunity to review the way we speak in family courts. The language we use in courtrooms can have a huge impact on the experience of separating families and how people feel about family justice.
Concerns about its often adversarial nature have been raised for years, most recently in our report ’What about me?’, which highlighted the needs of children in systems that largely operate for parents.
Disagreements about children may be a symptom of unresolved emotions following a relationship breakdown and yet relational issues are not addressed by the language of justice. In practice, this language may well be adversarial in nature and, so, add fuel to the fire. That said, where there has been abuse or financial misconduct the formality of language is important to provide a safe and robust boundary. Getting it right is challenging, but crucial.
Following a request from the President of the Family Division, Sir Andrew McFarlane, the FSG recently reviewed the language used in the family justice system. During this process, we consulted the Magistrates’ Association (MA) and other key players. We will be publishing our findings shortly. In the meanwhile, here are a few headlines.
As expected, there was a great deal of overlap in the perspectives of those we consulted, and the following terms ended up on the ‘red letter banned list’:
- Battle metaphors such as ‘the other side’, ’my opponent’, ‘fighting for my rights’, ‘custody battle’ and any other words that use battle terminology. Even in cases raising serious issues of abuse or financial misconduct, language should remain factual, rather than being tendentious or emotive.
- ‘Custody’ – while not used in legal circles, this is continually referred to by the public and in the media. It speaks of ownership and control over a child and should be replaced by ‘parental responsibility’ and ‘arrangements for a child’.
- ‘Contact’ – a sterile term to describe a child’s time with a parent.
- ‘Applicant/respondent/parties’ – legal labels are dehumanising and should be replaced by personal names.
Considering alternatives, the Family Solutions Group language sub-group has come up with five principles to arrive at language that is both child and solutions-focused. Conveniently, they all start with a P!
- Plain English: avoid legal jargon and use words that can be easily understood.
- Personal: use family names rather than legal labels.
- Proportionate: employ language that is proportionate to the issues before the court. In most cases, this should remain moderate; while language may be more robust where serious issues are raised, even then it should remain factual rather than emotive. There is no place for pejorative slurs from any person in the courtroom.
- Problem-solving: use constructive problem-solving language and never use battle terminology. Even in cases with serious issues, the context of a fight is not helpful for any family. Reframing combative language in a constructive manner reflects the equally salient task of reframing parenting rights as parental responsibility.
- Positive futures: avoid focusing on past recriminations and instead emphasise the importance of building positive futures. We come alongside families at a time of great difficulty and must point them forwards.
Change in language will not happen overnight. It will require discipline and determination and, we hope, rule changes and new court forms. Ultimately, it will be down to individual courts to be the guardians of the language used before them. Magistrates have a key role to play in removing adversarial language from the family courtroom.
