The use of language is critical to a successful divorce or separation. Language affects behaviour and everyone involved in the separation process should be mindful of the language they use and the impact it has, and to consider moderating their language where necessary.
The language we use has a profound impact on the mindsets of adults and therefore the behaviour and life experiences of their children. Every year, around 280,000 children see their families separate in the UK. How those separations are handled will affect the rest of these children’s lives. Appropriate language is needed through every part of a family’s separation: from the school gates to any legal process that follows.
In late 2022, the Family Solutions Group published a paper commissioned by the President of the Family Division called ‘Language Matters’. This report contains the five core principles to shift mindsets away from combative language, towards safety, wellbeing and child welfare.
These are:
- 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.
A key recommendation from the report is that we should remove the “fight’ and “battle” metaphors used in family law, as this has proved to be harmful in family proceedings. Instead, we need to emerge with a language that is more collaborative, and attempt to move away from an adversarial legal system, towards a more problem solving approach. The report also highlights the need for a change in the perception of what a good family lawyer looks like, challenging the need for aggressive lawyers in family proceedings, which have historically been promoted in the legal directories.
At every stage, lawyers should be interrogating their use of language and questioning whether they are helping the family involved. The language lawyers use filters down to the parents, so everyone involved needs to choose the language they use carefully, and moderate their language to not inflame the situation. Interesting, the President did not consider it was necessary for rules to change or for practice directions to be implemented, but rather that individuals should take responsibility for shifting their own mindsets and get used to speaking in a different way.
In any divorce or separation where children are involved, they need to be at the forefront of everyone’s minds. Parental conflict has been proved to be profoundly harmful to children. Solicitors therefore need to ensure their language does not escalate what are already vulnerable and difficult times, and to moderate anything which adds fuel to the fire, particularly in terms of parents’ hostility towards each other. In all likelihood, these parents will need to remain in each other’s lives as they have children together, and it is important that we encourage parents to look to the future in a positive way, rather than focusing on problems from the past.
Sally Sargeant – BTMK Family Law & Matrimonial Team
