Being a family lawyer, it’s important to acknowledge the emotional position of every individual and their unique set of circumstances. Part of this involves being a skilled and sensitive communicator and being mindful that the language used and the words they choose in correspondence, and sometimes court, can influence decisions that have a lasting impact on families.
The language of family law should be clear and accessible to everyone involved, ensuring they fully understand the situation. It’s important to move away from language that promotes conflict and instead use words that promote solutions and prioritises the welfare of those involved. If we use the language of conflict, we will have conflict. Family lawyers must also recognise that they often deal with relationships where harmful behaviour and abuse are present and the language used there needs to reflect these circumstances. Shifting from harmful to hopeful language can make a significant difference.
A 2022 paper by Family Solutions Group, reviewing the use of language for separating families in England, made several recommendations for change to the language used in family law. Their recommendations are sensible and still worth considering in Scotland today.
They identify 5 core principles for family law language use:
- Plain English – it is better to avoid legal jargon and use easily understood words. If you must use legal speak, explain it. This is particularly important for those who do not have English as a first language.
- Personal – Where appropriate, use family names rather than “the child”, “the Pursuer”, “the Defender”. Do not depersonalise the family law process. Legal professionals are comfortable with this language, but the family member whose life is affected is not.
- Proportionate – Use language that is proportionate to the family issues being considered. If you are dealing with a case involving abuse or harmful behaviour, formal language and processes might be needed. In a more straightforward case, do not threaten to “go to court” unless there is no other solution available.
- Problem-Solving – Where appropriate, use constructive, respectful, problem-solving language and avoid confrontational/aggressive language. In child cases, focus on parents’ shared responsibilities towards their child rather than them trying to assert their individual rights. Can the prospect of reaching an amicable solution be mentioned? Keep a balanced tone that invites constructive dialogue.
- Positive Futures – The emphasis, where possible, should be on building for the future rather than going over what happened in the past.
Most family law cases do resolve using a non-court, problem-solving approach. It is usually only the Divorce itself that requires a Court to consider the papers before granting it. Most divorces are ultimately undefended and this needs to be recognised in the language we use as family lawyers.
The Family Law Language Project is an organisation with a mission to make Family Law easier to understand, less hostile and accessible for everyone. Their aim is to do this by improving the understanding and use of the language of family law. This group are interested in hearing the experiences of those previously involved in any family law process, how the use of language has impacted on them and any suggestions to change the language used that might have made things better. Please get in touch if you are willing to share your experience of the language of family law on the basis that this might help others.
