“Bit by bit the penny is dropping: the language is important.”
“It’ s blindingly obvious that the language we have been using is not appropriate and only goes to stoke the minds of those in a combative mindset, rather than direct them in a different way.“
“The real change will come by each one of us thinking about it, and then changing practice.”
“Now we can see the whole range of quite small things that we can do. Each of these feeds into the bigger messages that this is not a custody fight, it’s a coming to together of parents to work together to reduce the impact on their children and help them resolve their issues about the arrangements for their children, in as low a temperature as possible.”
“It’s obvious what we should do, and we should now just get on with it. And I will do all I can to put my shoulder to the same wheel to bring about as much
change as possible.”
These are the words of Sir Andrew McFarlane, addressing the webinar held on 14 February 2023 arranged by the Family Solutions Group (FSG). This followed the publication of their paper in October 2022 entitled “Language Matters: A review of language for separating families”. The paper was written by a group of mediators and family law solicitors and their remit was to consider and make recommendations on the issue of language within private law family proceedings and the changes needed. They consulted with a wide range of people involved with separating families.
The paper reminds us that the words we use shape our mindsets which in turn affects how we think and behave. In his famous 1946 essay “Politics and the English Language”, George Orwell pointed out that there is a relationship of cause and effect between what we say or write and what we think. “The slovenliness of our language”, he wrote, “makes it easier for us to have foolish thoughts”. He warned that unless you think carefully about the language you use, then familiar stock words and phrases “will think your thoughts for you”.
The language of family separation was embedded into our cultural and legal language many years ago and whilst the law has moved on, with, for example, the introduction of no fault divorce, much of the adversarial language has remained static. We now have a wealth of knowledge and scientific evidence about the harmful impact on children of parental conflict and whilst we must always remain alert to the need to provide safe boundaries around those who have suffered from abuse, financial misconduct or harmful behaviour within their relationships; we must ensure that our response remains proportionate and it is unhelpful to thrust parents into a metaphorical battleground at a time of fragility in their relationships.
We would probably all agree with the FSG’s proposition that we should aim to promote the following mindsets from our language:
- away from adversity and battles, towards wellbeing
- away from fear, towards safety
- away from parental rights, towards thriving childhoods following separation
- away from retrospective blaming, towards future-focussed solutions.
The team behind the report identified many words which are longer fit for purpose: they include “battle” language, “custody”, “contact” and many more. They came up with 5 core principles for language change, to shift mindsets away from adversity and battles, towards safety, wellbeing and child welfare:
- Plain English – avoid legal jargon and use words which can be easily understood
- Personal – use family names rather than legal labels
- Proportionate – use language which is proportionate to the family issues being considered
- Problem-Solving – use constructive problem-solving language rather than battle language
- Positive Futures – the emphasis is not on past recriminations but on building positive futures.
The report calls for a wide publicity campaign to re-frame public understanding about family separation and what the law expects and warns that in the absence of political change and a dedicated public education campaign, the language at the school gate or in the media will continue as now. The team invite the President to issue guidance about the use of language in the Family Court and by legal professionals. However, it was notable that the President, during the webinar, indicated that whilst he would do all he could, he did not feel it was a matter for rule changes or a practice direction and emphasised the need for individuals to take responsibility for shifting their own mindsets and getting used to a different way of communicating – he said it was not about changing the law but of speaking in a different way.
The report also highlights the need for a change in the perception of what a good family lawyer looks like and challenges the legal directories’ promotion of the language of aggression and war in family proceedings. The report highlights descriptions of barristers such as:
“You need shin pads and earmuffs to deal with her, but there’s no denying she is effective.” “She is an extremely effective advocate who is climbing to the top of her profession. Peers view her as a dangerous opponent and clients admire her “tenacious and forceful” approach. One peer commented: “She always goes in hard for her client. If you’re against her you know it’s fists up and a fight.””
The report calls for some creative thinking and practice change to highlight the skill of professionals whose caseloads demonstrate successful problemsolving
rather than adversity.
The report contains a table with suggested alternatives to currently used language in family cases. For example, Applicant and Respondent would become Participant A and Participant B; parties would become either parents (in children cases) or participants (in finance cases); dispute would become issue/problem to be resolved; contact would become parent time, family time or time with mum and time with dad; and so on. There are also suggestions for a radical re-write of court forms.
The report writers express disappointment that the “excellent guidelines” contained in the Law Society Family Law Protocol and the Resolution Code of Practice are not routinely followed, and make a series of recommendations for communications with clients and with the client’s partner or their lawyer. The report contains an example of a suggested alternative style for first letter, which I reproduce on the next page as you may find it thought-provoking. I also set out some links below to the report and the webinar and other organisations which you may find interesting. Whilst it is clear that change won’t happen overnight, and for many the shift of mindset required may be challenging, there is increasing momentum for reform and we owe it to our clients and
their children to give more thought and consideration to our use of language and its impact on them.
Webinar link: https://www.familysolutionsgroup.co.uk/language-matters/
Family Justice Young People’s Board: Mind Your Language report, can be downloaded here: https://www.cafcass.gov.uk/family-justice-young-peoplesboard/
Family Law Language Project: https://www.thefamilylawlanguageproject.co.uk/