Does language matter in the family court?

Lawyers are often stereotyped for using ‘legal-ese’ and not putting everyday issues into everyday language. This no doubt makes it difficult for litigants in person (individuals who do not have legal representation) as well as our own clients who are navigating the family court.

The court is also considered an adversarial place, where you are fighting for something — be it your home, or time with your children. 

However, instead of it seeing it as a battleground (further complicated by archaic language) it should be seen as a problem-solving forum for discussion and compromise.

Family Solutions Group paper

In late 2022, the Family Solutions Group published a paper commissioned by the President of the Family Division called ‘Language Matters’.

The report calls for a fresh look at the way family law is framed and delivered to those who need to use it, with a view to shifting mindsets away from adversity and battles, and towards safety, wellbeing and child welfare.

What are the recommended core principles?

The core principles recommended by the Family Solutions Group, called the 'five Ps' are:

1. Plain English — avoid legal jargon and use words which can easily be understood.
2. Personal — use family names rather than legal labels.
3. Proportionate — use language which is proportionate to the family issues being considered.
4. Problem-solving — use constructive problem-solving language rather than battle language. The move from combative to cooperative language reflects a move from the language of parental rights to the language of parental responsibility, so issues can be approached in a child-focused and problem-solving way.
5. Positive futures — the emphasis is not on past recriminations but on building positive futures in which children can thrive.

And so, what is our advice?

Be realistic

Too often, judges will say ‘there are no winners, except the lawyers’. The more you argue and the more you dig in, the longer, more costly, and more adversarial your case can become. 

That doesn’t mean you should always concede an issue: it means you should take early advice from an expert family solicitor at the outset and ask them to be honest with you about your objectives and expectations.

Avoid getting drawn into a hard-line position

If you read the tabloid media or watch the soap operas, you will often hear reference to “custody battles" but this is a completely outdated term. 

In reality, when it comes to matters concerning children, the family court expects parents to prioritise their children and, absent genuine safety concerns, to promote the role of the other parent in their lives.  

Be flexible and think about what is in your children’s best interests.

Try to work together

Phrases such as ‘coparenting’ or ‘shared care’ are not platitudes. They do not necessarily mean a 50/50 split of time. They mean parents working together.  

Any arrangement must meet the needs of the child and what is best for them, not what is best for the parents. It is unhelpful and outdated to count the days or nights that a child will be spending with each of you. Try to approach the situation proactively.

Avoid ‘reacting’

Try to take time out before responding. Give yourself time to reflect and be sure about what you want to say, why and how you want to say it before you communicate.

How should you communicate?

Think about the best medium for that communication. Each family is different.

Is it a face to face discussion, a phone call, or an email or text?

Using tools such as parenting apps can help to reduce misunderstandings or hot-tempered responses.

Family mediation can also provide a safe forum for a supported conversation, even in what might seem the most intractable dispute. Read more about how family mediation could be an option for you.

How does the terminology and language in family law need to change?  

The aspiration should be for lawyers and separating couples to adopt a problem-solving approach to their separation.  

This is not easy to do, and there is often ill will and blame felt by one or both parties. There are often feelings of sadness and guilt. Although putting those to one side can be easier said than done, trying to look forward and not backwards is a good place to start.  

Identifying what you want to achieve — and why — at the outset with expert help providing you with guidance on what is possible is invaluable.