In the words of the President of the Family Division:

‘The Family Court is not currently in a good place. The substantial backlog that existed before the pandemic has now grown very substantially.’ Jersey International Family Law Conference October 2021

‘[Y]ou are nevertheless entitled to wonder why I, as the President of the Family Division and Head of Family Justice, am suggesting, as I will be, that separating parents, who do not need the court’s protection from abuse, should try almost anything before turning to the Family Court.‘  Worcestershire High Sheriff’s Lecture October 2022

These open acknowledgements of the problems facing our family justice system provide the freedom to explore how it should change. The Family Solutions Group (FSG), chaired by the indefatigable Helen Adam, has been at the forefront of calls and proposals for reform. The FSG’s latest paper, Language Matters, commissioned by the President of the Family Division, centres around the use of language. To quote from its executive summary:

‘Language matters. The words we use shape our mindsets, which in turn affect how we think and behave. Language for separating families has evolved out of an adversarial legal system: it is accusatory and divisive. It is also potentially harmful, increasing conflict through battle metaphors while parents compete for justice and control of their children.’

It’s very easy, as a family barrister, to agree. In fact, we explicitly did so, as we both contributed to the report. All family lawyers will endorse settlement as being the best outcome for our clients if a fair and safe outcome can be achieved. We are all aware of the need not to use unnecessarily hostile or aggressive language and to bear in mind the strong criticism levelled by Peel J in WC v HC [2022] EWFC 22:

‘Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms and to seek to paint an unfavourable picture will assist their case. It is high time that the parties and their lawyers disabuse themselves of this erroneous notion.’

And again, in the infamously ‘nihilistic litigation’ of Crowther v Crowther & Ors (Financial Remedies) [2021] EWFC 88:

‘Each party thinks the other is, to use their own words, “out to destroy” them. These proceedings have been intensely acrimonious. They, and their lawyers, have adopted a bitterly fought adversarial approach. I asked myself on a number of occasions whether the aggressive approach adopted by each side has achieved anything; it seems to me that it has led to vast costs and reduced scope for settlement. The toll on each party is incalculable (W was visibly distressed during the hearing) and, from what I have heard, the impact on the children has been highly detrimental.’

Are there systemic issues with the language used which we, as a profession, need to address? A client divorcing for the first time will have no idea what to expect. If they peruse the legal directories, what will they find? References to solicitors and barristers who are ‘totally fearless’, ‘will fight tooth and nail’, ‘will take the gloves off and fight when necessary’, ‘manages to terrify the other side in court’ – all taken from the most recent editions of the legal directories. What does that say, at the very earliest stage, about the process upon which they are about to embark? That it is a war? As we all know, if you prepare for a battle, particularly in a litigation context, then that is what you will get. Premature applications or hostile steps taken to grab assets, or worse, children, poison the well. Mistrust builds quickly in a divorce context where communication between the couple may be at an all-time low.

There is no doubt that some progress has been made. Chambers and Partners is in the process of creating a new Family ADR section for the next edition of its guide (to be launched in October). In the current directories there are already references to ‘empathy’, ‘kindness’ and ‘collaborative’ approaches. But can more be done? We have some suggestions:

1: Do we need to recalibrate our definition of professional excellence?

In the family law context, clients want the lawyers who settle hard cases and save them money, not the ones who litigate relentlessly and end up subjecting them to the risk of a published judgment. But how do they find those lawyers?

2: Should the legal directories reframe their enquiries further?

Referees could be asked about a barrister or solicitor’s abilities to settle, extent to which they enable their clients to navigate divorce, achieve a fair outcome and remain a family on the other side.

3: This leads on to our need to celebrate settlement

If professional glory comes from reported decisions, why aren’t we reporting notable settlements? Why do professional plaudits only follow the cases which fight in the higher courts? In a recent article for FRJ we suggested that each month a list of notable settlements should be published. If a legal team felt their case qualified they could submit, along with the consent order and D81, a one page document explaining why the settlement should be recognised, for instance due to complex points of law or evidence. Judges could then choose to publish those summaries which merit recognition, naming the solicitors’ firms and counsel involved, but otherwise anonymising names and identifying features. There should be the opportunity to apply to a High Court judge for recognition in the most complex cases.

4: Inevitably, this leads to another systemic barrier to a real sea change in approach

On the one hand, the most senior family judges are imploring families to settle their disputes away from the Family Courts. Research consistently shows that adversarial court proceedings cause emotional harm to the children involved, and the Family Court system as a whole is creaking under the pressure of its own case load. And yet, when it comes to professional development, the cases which fight, and ideally then appeal, are the ones which count. The KC application form calls for 12 cases with judicial, opponent and solicitor referees. How does that encourage settlement? On the one hand lawyers are being told to use temperate language and to settle cases in the interests of the families involved, but is that not in conflict with any professional ambitions they may have? Again, isn’t this easily remedied? If a marker of excellence is the ability to settle hard cases, then surely this should be a criterion against which applicants are assessed. Cases conducted through ADR or NCDR (non-court based dispute resolution) processes should count as much as those which litigate.

Language matters. But it’s more than just choosing different words. It’s easy to define yourself as a golden retriever and not a rottweiler. If we really want radical reform of Family Justice, we need to make settlement, and decent language, the pinnacle of achievement in the directories, reported judgments and the profession as a whole. 

References
Language Matters: a review of language for separating families, The Family Solutions Group, October 2022.
‘Supporting Families in Conflict: there is a better way’, An Address by Sir Andrew McFarlane to the Jersey International Family Law Conference October 2021.
‘When families fall apart, do they fall too easily into court? or ‘Almost Anything but The Family Court’, Sir Andrew McFarlane, The Worcestershire High Sheriff’s Lecture October 2022.
‘Someone! Do Something About Costs! The Single Lawyer Solution’, Harry Gates and Samantha Woodham, Financial Remedies Journal, September 2022.