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The importance and impact of language in family law settings

The adversarial language of legal proceedings is a barrier to resolving issues between parents who have separated.

06/10/23

The importance and impact of language in family law settings

In a seminar at the Social Work Show in Manchester, Legal Associate Tara Dunne said that in late 2020, the Family Solutions Group, a multi-disciplinary group experienced in working with parents separating outside the court system, was asked how those families’ experiences could be improved. The group’s report ‘What about me? Reframing Support for Families following Parental Separation’, said the child needed to be restored to the centre in systems that currently operate largely for parents.

Following on from this Sir Andrew McFarlane, President of the Family Division commissioned the report, “Language Matters”, which called for a fresh look at the way family law is framed and delivered to those who need it.

Key problems included:

• Language was adversarial – in reports and other documents, the terms were about about battles where the sides would ‘win or lose’

• Language was often used incorrectly even by professionals – custody is often still used instead of the accepted term, child arrangements

• Other terms were misunderstood and misused -- ‘common-law spouse’ was a frequent example

• Acronyms and other jargon proliferated when speaking with parents, who did not know what they meant

• Technical issues are not always understood so using luggage that explains complex issues in a simple way.

Ms Dunne said that OurFamilyWizard, a co-parenting communication platform (originally used in the USA), is being used in the UK to help parents at all stages of the divorce and separation process.

“OurFamilyWizard has a tonemeter and so we put through it some common correspondence seen between professionals.

Examples included: ‘we do not wish to raise your client’s conduct but if an agreement cannot be reached, our client will be forced to bring such matters to the attention of the court,’ and ‘we are outraged at your suggestion that our client has acted inappropriately,’ and ‘I trust you have advised you client that their application will inevitably fail.’

“They were all flagged up as potentially upsetting for the co-parent. I think it shows how important it is, whether on the phone or in actual written correspondence, to think about what language we are using; is it appropriate and is it going to help that parent or that family?

“More and more you will be becoming familiar with the out of court resolution options for families when they are going through this process. When we are using battle language like this, they are going into that process not thinking of being child-focussed, or thinking about trying to recover things outside the courtroom. Inevitably that is going to increase legal costs for the parents because they were not thinking about anything to resolve things away from the courtroom.

She said that battle language means that the children will be affected even if they manage to sustain positive parent-child relationships.

Government research in 2020 showed that this sort of language means children are at risk of negative long-term life outcomes, ‘not just emotionally but in other areas including reduced academic attainment, negative peer relationships, smoking and substance abuse.’

“The Family Law Language Project was set up to help make family law easier to understand, less hostile and more accessible. We intend to do this by improving the understanding and use of language.

Its recommendations included the Five ‘Ps’ checklist:
• Plain English – avoid legal jargon
• Personal names – use family names, not legal labels
• Proportionate – let’s use language that is proportionate to the issues being raised and move • Problem-solving approach instead of using battle language
• Positive Futures – the emphasis is on the future, not on recriminations and on the issues
that are in the past.

Ms Dunn ended with a warning about new features on WhatsApp and iMessages: both now have features which allow messages to be edited after they have been sent and without the recipient knowing what has been done.

“The OurFamilyWizard app does not allow editing after sending, helps parents communicate with more amicable language before sending, and offers a tailored calendar for their shared parenting.”

Language Matters A review of language for separating families: https://www.familysolutionsgroup.co.uk/wp-content/uploads/2022/10/Language-Matters-October-2022-with-annexes.pdf

The Family Law Language Project: https://www.thefamilylawlanguageproject.co.uk

Find out more about OurFamilyWizard: https://www.ourfamilywizard.co.uk

Language Matters A review of language for separating families: https://www.familysolutionsgroup.co.uk/wp-content/uploads/2022/10/Language-Matters-October-2022-with-annexes.pdf

The Family Law Language Project: https://www.thefamilylawlanguageproject.co.uk

Find out more about OurFamilyWizard: https://www.ourfamilywizard.co.uk

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