Posted in News  |  

The Family Solutions Group, backed by Sir Andrew McFarlane, President of the Family Division, is calling for a radical change in outdated and combative language used by lawyers, courts, media and wider public in cases of family separation. The call comes on the anniversary of the No Fault Divorce, (Divorce, Dissolution and Separation Act 2020), the biggest shake up in divorce law for more than half a century, which came into force on 6 April 2022, ending the need for separating couples to apportion blame for the breakdown of their marriage, helping them instead to focus on practical decisions involving children or their finances.

Sir Andrew McFarlane, President of the Family Division said:

“It’s blindingly obvious that the language we have been using is not appropriate and only goes to stoke the minds of those in a combative mindset, rather than direct them in a different way.”

“…this is not a custody fight, it’s a coming together of parents to work together to reduce the impact on their children and help them resolve their issues about the arrangements for their children, in as low a temperature as possible.”

“And bit by bit the penny is dropping. The language is important. I want to do all I can to bring about a change in the way we use language in the court.”

The Family Solutions Group says that battle-stoked language and words like ‘custody’, ‘dispute’ and ‘versus’ can heighten conflict between parents, and can have a long-term negative impact on children caught in the middle. They argue that a simple change in the language of family separation away from adversity and battles, towards safety, wellbeing, and child welfare could improve outcomes for parents and their children. The call for change is informed by recent polls of over 400 professionals to find out which words are most harmful and helpful, plus a survey completed by 228 professionals.

  • The survey found that a majority (99%) of professionals said that the language legal professionals use affects separating clients’ mindsets and their behaviour, and that small changes in language could affect a child’s experience following their parents’ separation.
  • Professionals were asked whether a move away from legal jargon to plain English in client correspondence and case paperwork could improve outcomes and reduce conflict: 86% strongly agreed and 14% said it might have a positive impact.
  • 98% said that using clients’ first names, rather than words like ‘Applicant’, could also make a difference. 
  • Professionals cited the biggest barriers to changing family separation language were: habit 50%, client expectations 22%, vested interests 10% and 5% apathy.
  • Over 400 professionals working with separating families, including mediators, barristers, solicitors, judges, family legal advisors, Cafcass, parent coordinators, relationship therapists, contact centres and clinical psychologists attended three workshops in January, February and March and contributed to polls about language.
  • The words custody, dispute, contact, versus, rights, battle and opponent were thought to be the most harmful and damaging, and their continued use sets the tone for acrimonious parental separation and child arrangements. Specifically, stopping using the word “versus” in court headings, like in the high-profile 1979 Kramer vs. Kramer film, could remove the “battle” element.

The phrase ‘custody’ dates back from another era and is loaded with inappropriate connotations of possession and property.  This was removed from the law by The Children Act 1989 and yet 30 years on it is still widely used across media, social media and by the public.

Helen Adam, Chair of the Family Solutions Group said:

“It’s shocking that harmful terms like ‘custody’ are still commonplace in our society and the media, despite every effort to remove them. The ‘fighting talk’ so often used in the context of family separation sets parents against each other, escalating family problems and putting children at risk.  A ‘custody battle’ suggests a tug of war between parents for the control of their child, with parents pulling against each other. Not only is this 30 years out of date, but it’s harmful to children, unhelpful for parents and ultimately damaging to society.”

“In these days of increasing awareness of the impact of language upon minority groups, it is extraordinary that there is such a blind spot over the impact of language on families who separate.  The simple truth is that fuelling aggression and battles between parents increases the risk of harm to their children. Our language should reflect a problem-solving approach rather than stoke the fire of a battle.”

“It’s clear from our workshops and survey that it’s time for a major culture shift in our language, as people understand the impact on children. There is now a groundswell of support among family law professionals to dial down their language, replacing adversarial and battle-laden terms with forwards-looking and solutions-focused language.  This is all about protecting child welfare which, under the Children Act, should be our paramount consideration.”

“We are grateful to the President of the Family Division for highlighting this important issue and leading the call for change.” 

The Family Solutions Group is marshalling widespread support across all family legal sectors in calling for the end to the use of unnecessary hostile and combative language in family separation.