John Bolch
Chronicle Law are pleased to present the latest legal insights in family law from John Bolch – Family Law Blogger exclusively for one of our legal suppliers Cansford Labs
In his latest exclusive blog for Cansford, Family Law blogger John Bolch examines how language and context has played its part, both good and bad in family law cases over the years.
For almost as long as I have been foolish enough to have dealings with the family justice system (so long that I may once have appeared before Sir Cresswell Cresswell) there has been much wringing of hands by those involved in the system over the use of language.
Too confrontational
The first example I recall was the casting into the bin of history of the term ‘custody’, referring to with whom a child should live. Those who drafted the Children Act 1989 deemed that that word, used since time immemorial, and still deemed appropriate by many legal systems around the world today, was too confrontational, in the sense of being possessive, for our system. It was therefore replaced with the term ‘residence order’.
Now, there are two things about this imposition of ‘appropriate’ terminology that I find mildly amusing.
Common parlance
The first is that, despite the best efforts of legislators, judges, and all others involved in the family justice system, the word ‘custody’ remains in common parlance. Hardly a day seems to pass without me coming across its use, both by those who can be excused for not knowing better and those who have no excuse. Clearly, old habits die hard.
The second thing is that, only twenty-five years later, our lords and masters determined that even the term ‘residence order’ was inappropriate. It was therefore replaced with the clumsy ‘child arrangements order’, which can involve both ‘contact’ and, particularly clumsily, ‘lives with’ orders.
Changes and changing
In the latter years of my time practising (I relieved myself of that burden in 2009), the use of confrontational language was increasingly frowned upon. I recall, for example, moving away from the practice of heading letters ‘Smith v Smith’, and I could see the sense in that.
More recently, however, the ‘disapproved’ terms have made it increasingly difficult for a dinosaur like me to express himself as he wishes. For example, I am told not to use the term ‘dispute’ when referring to a err… dispute between the parties to a family err… dispute.
But seriously, words do matter, as we have seen in two examples that cropped up in my news feed over just the last month.
Victim blaming in courts
The first example comes from a project by herEthical.AI, which describes itself as “a specialised AI consultancy dedicated to providing expert guidance and practical machine learning solutions for police forces and third-sector organisations”, whatever that means.
As to what the project is about, herEthical.AI state:
“We are developing an automated VB [read: Victim Blaming] detection tool capable of analysing thousands of documents to identify instances of retraumatising language. By leveraging this insight, we aim to create new training programs that enhance court transparency and promote fair access for survivors of domestic abuse.”
Analysis shows victim-blaming
This analysis has found that family court judges are using victim-blaming and gender-biased language towards domestic abuse survivors.
I haven’t seen the analysis myself (as far as I know it has not yet been published), but a report in The Guardian gives a couple of examples of inappropriate language found by the analysis.
One example involved “characterising a woman as a “deeply troubled mother with mental health difficulties unrelated to the father’s behaviour””. Now, I’m not sure about this. Surely, it is possible for the court to find as a fact that the mother had mental health problems that were not caused by the father’s behaviour? Of course, context is everything, and if the words were used to downplay abusive behaviour by the father then that is obviously wrong.
Another example involved a judge “referring to an attempted strangling as a possible “prank””. Here, I suppose it is possible that such an action can justifiably be characterised as a “prank”, but in this instance I am assuming that the victim complained of it as an example of abusive behaviour, in which case such a characterisation is clearly inappropriate.
The work of herEthical.AI appears to be ongoing, and if it can improve the court experiences of abuse victims (and perhaps even encourage more victims to come forward), then that is obviously to be welcomed.
Cafcass practice policy
The other example also relates to the field of domestic abuse.
Cafcass has published a new Domestic abuse practice policy which “sets out practice requirements that support practitioners and managers to improve the effectiveness of their practice and advice to the court for children and adults who have experienced or are experiencing domestic abuse.”
I will not go into the details of the policy (which you can find here), but just give a small example of what it contains.
Paragraph 10 of the policy states:
“Practitioners must not use language such as ‘claims or alleges’ when a person reports domestic abuse. To do so minimises and diminishes the experience of the adult and child living with the impact and trauma caused by abuse. While it is for the court to determine the facts, it is important that practitioners set out exactly what has been said by a child and an adult so that it is understood and informs the analysis regarding why any proposed arrangement for the child with an adult said to be the perpetrator of domestic abuse including coercive and controlling behaviour is or is not in their best interests.”
Unlikely to be influenced
Whilst I can understand the thinking behind this, I feel it would only be fair to the judiciary to point out that an experienced judge is unlikely to be influenced by the use of such words as ‘claims’ or ‘alleges’.
But having said that, the words will of course matter to the victims reporting the abuse. How will they react if the Cafcass officer to whom they have poured out their heart suggests that what they have reported may not be true?
Words do matter, and in the area of family law, where emotions can run high, they matter even more. Clearly, all family justice professionals must be alert to the effect of their words, and be prepared to modify their ways, no matter how difficult that may be.