Minding the language

In family disputes (sic), the legal profession needs to transition to ‘a language of wellbeing and cooperation, instead of law and justice’. 

That’s according to the Honourable Mr Justice Cobb’s Family Solutions Group, a multidisciplinary initiative which aims to improve the experience of separating families. As well as publishing a ‘Language Matters’ paper, the group has been supporting the ongoing work of the Family Law Language Project, set up to make family law easier to understand, less hostile and more accessible.

Custody, versus, battle, opponent, rights, parties and dispute – alienating and hostile. First names, collaboration, problem-solving, together, our children, co-parenting – constructive and conciliatory.

All very commendable. Plain language is better than legal jargon. The ‘fighting talk’ often attendant on family breakups is inimical to the interests of blameless children caught up in them.

Yet not all solicitors appear wholly enthusiastic. Such battles – for that is how they often turn out, whichever vanilla term is applied – are rarely magicked away by the adroit application of euphemism. The emotions unleashed on a family breakup are raw and real. In that context, says one Gazette reader, ‘intelligent debate, whether legal or otherwise, using established terminology which accurately simplifies technical distinctions should not be degraded by infantilised vocabulary’.

Is this a valid point? ‘A ‘custody battle’ suggests a tug of war between parents for the control of their child, laments the FSG. But isn’t that exactly what a ‘custody battle’ – or contested determination of where the children will live and who will care for them, if you prefer – actually is?

‘Custody battle’ is not the best example, granted. Out of date.

Yet the term endures because it seems neatly to encapsulate what is actually happening.

So what about entitlement, 50:50, judgment, primary carer, my client and applicant – also identified as ‘harmful’ words by ‘Language Matters’. Linguistically, they seem neutral to a layperson like me.

Perhaps I am a dinosaur. But family breakups are lifechanging. And while some words are certainly counterproductive, the language of the law should connote their gravity. It is at least arguable that comfort and assurance can also be found in formality.