Language matters. In his famous 1946 essay Politics and the English Language, George Orwell pointed out that there is a relationship of cause and effect between what we say or write and what we think. ‘The slovenliness of our language’, he wrote, ‘makes it easier for us to have foolish thoughts’. He warned that unless we think carefully about the language we use, then familiar stock words and phrases ‘will think your thoughts for you’. More than ever before, perhaps, we are now aware of the power of language to influence thoughts.
As a society we have made huge progress, for example, in removing gender-biased and racist language from everyday speech. We do this because we recognise that using biased language can reinforce biased thinking. But there remain areas in which the power of language to influence thought and behaviour has not yet been properly appreciated. This article concerns the use of the language of aggression and conflict in the context of family breakdown and argues that it is time for change.
A new language around family breakdown is needed to ensure safety and protect children of parents who separate. If that is to happen then we, the family professionals, must lead the way to help politicians, the press, the public and ultimately the parents who separate understand a safer approach when parents live apart.
A language of the past
Our historical roots govern the current language and cultural framework for separated parents. When George Orwell was writing his essay, family breakdown was a matter for litigation. Over half a century later, and with radical changes in society to family and relationships, we still carry the unfortunate legacy that family breakdown is litigation, conducted by litigators and requiring litigious vocabulary. We see ugly outcrops remaining like a stain on our national vocabulary.
The stain that it has left is exemplified by the oft-heard proprietorial term ‘custody’, with all the association of ownership and control of a child that comes with it. One step further, and we are in the territory of a ‘custody battle’, an adversarial term that pits parents against each other as they fight over the control of their child. These terms are deeply engrained in our national understanding of family breakdown. We still hear government ministers referring to ‘custody’ and, as for the press, we rarely see our world correctly referenced. A 20 second Google search has immediately found a national paper headline this week to a judge making a ruling ‘in a child custody case’. How can we expect the public, and the parents who separate, to use appropriate language that ensures safe outcomes for all if our politicians and our press continue to get it so wrong?
Why this matters
If efforts are to be made to change our language, then a first step is to understand why this matters.
One of the critical societal changes over the last century has been in our understanding of child welfare. We have moved from a society where ‘children shall be seen and not heard’ to the modern-day emphasis on the ‘voice of the child’. Furthermore, we now know that children are harmed by continuing parental conflict, which was either unknown or not considered relevant for much of the last century when divorce was conducted as litigation. The work of Professor Gordon Harold and others has clearly established that the quality of the inter-parental relationship, specifically how parents communicate and relate to each other, is a primary influence on children’s long-term mental health and future life chances (Harold, G, Acquah, D, Sellers, R and Chowdry, H (2016). What works to enhance inter-parental relationships and improve outcomes for children. Department for Work and Pensions.) It is therefore incumbent upon us not to use terminology or language which undermines the inter-parental relationship.
On a parallel but different track, another key area in which society has changed over the last century is in our understanding of the prevalence and incidence of domestic abuse. We must be mindful of the language needed for those who are vulnerable from abuse. In families where either adults or children are at risk of abuse, they may very well need the protection of court. The language needed for these families should be centred around ensuring safety as a priority.
Holding these two important principles alongside each other to promote good outcomes for all requires careful language. A national presumption that family breakdown is managed by adversarial litigation is unhelpful; it exacerbates conflict and too many children are harmed by it. Equally, language that unequivocally promotes a continuing parenting relationship will put some families at risk of ongoing abuse. An automatic expectation of cooperative parenting may be actively dangerous for a minority of families.
If there is to be any chance of parents and children – or indeed politicians, the media or society at large – understanding our law, we must be clear in our messages. We all need to be working hard at our inner dialogues, reminding ourselves that working with families at this most vulnerable of time is a huge responsibility. As mediators, Cafcass, legal executives, solicitors, barristers or judges, we must be mindful of the language we use in our mediations, reports, letters, opinions, submissions and judgements. Are we compromising safety for this family? In the absence of safety issues, are we jeopardising the ongoing parenting relationship? Are we putting a child’s future welfare and life prospects at risk by the language we use with these parents?
When meeting representatives from the Private Law Working Group early last year, members of the Family Justice Young People’s Board commented that they do not like their family issues being referred to as ‘Smith vs Smith’. When I began as a family solicitor over 30 years ago, it was customary to head our letters ‘Smith vs Smith’. I hope this practice is now in the past. We know from the Mapping Paths to Family Justice research (Barlow, A, Hunter, R, Smithson, J and Ewing, J (2017). Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times, Palgrave, Socio-Legal Studies) that many solicitors work hard to try and contain rather than escalate conflict, acutely aware that the language we use can inflame or pour balm on the situation. The authors also cautioned that language which promotes a view of court as always ‘harmful’ is unhelpful when, for some, court is the necessary option to ensure safety or for needs to be met, or it may be a necessary default option if an ex refuses to engage in a less adversarial process.
Too often, the language we use is that of those who work in the system rather than the language of those who use the system. It is confusing for parents, and the young people whose lives are affected, to be thrust into a vocabulary of justice and conflict. When family relationships are in crisis, a different language is needed, one that can be understood and applied.
So what messages do we want parents and children to receive about family law? What will the future for their family be in the aftermath of parental separation?
For starters, safety comes first. No child or parent should live in fear of their safety or of being coercively controlled by another. If there is any form of domestic abuse, then there are specialist services to help and the family court is there to protect you. This is the language of safety.
In the absence of safety concerns, the law expects parents to prioritise child welfare over and above their negative feelings about each other. Parents are given responsibility rather than rights and both parents have a responsibility to promote the child’s relationship with the other parent. Yes, time with a child is important, but the way we relate to the other parent is also important. Children need parents who don’t live out their hatred for each other. The law expects parents to cooperate. The term co-parenting is confusing for many parents and ends up being interpreted as 50:50 time. The longer phrase ‘cooperative parenting’ says what it is on the tin; children need their parents to cooperate with each other, where safe to do so.
What about the concept of 50:50 shared care? I’m very happy to share my cake with you 50:50 so we each get to eat half, but I wouldn’t do that with a child; it speaks more of asserting my rights as a parent, than meeting a child’s needs. The law says parents remain responsible for their child 100% of the time, regardless of where their child might be at any time. The starting point is therefore 100:100 and, within that, to find practical arrangements that work well so the child can enjoy a close and nurturing relationship with both parents. Those arrangements may end up being something broadly equivalent to 50:50, but they must fit the child’s needs. This is all about reframing language away from a parental assertion of rights to an understanding of child welfare.
It is also important that parents, and indeed society, understands a clear message that the court is there for those who are vulnerable and need protection. Otherwise, parents should not be turning to court with their disagreements and instead should look to a range of services to help them arrive at their own family solution. This may be with the help of legal support, mediation, separated parenting programmes, therapeutic support or any one of the DWP Reducing Parental Conflict programmes. Many parents need help to navigate the upset of relationship breakdown, to dial down conflict, and over time to rebuild a cooperative parenting relationship. The law expects parents to be turning to these out-of-court services rather than inviting the court to become involved in the fallout which flows from the end of their relationship.
Fight or flight
We hear the language of ‘fighting for my rights’ in respect of children, the context of a boxing ring. The legal directories promote this with references to acclaimed professionals being someone you ‘want in your corner’. The backdrop of an adversarial system for parents in difficulties (perhaps without knowledge of the other support available) is daunting; for some it may promote a fight or flight response. The world inhabited by legal professionals will often engage with those who take the fight route. I’d like to pause for a moment and think about those who take the flight route.
Recent market research from Dad.info found that 38% of single mothers said their child had no contact with the other parent. A number of this group will have ceased contact for important safety reasons; while the numbers of cases involving domestic abuse are worryingly high, nobody has suggested that as many as 38% of families have abuse serious enough to warrant no further contact with a child. There will no doubt be some parents who, for whatever reason, may not want to maintain contact with their child. However, the Dad.info market research also found that the most common reason given by parents for losing contact with a child was to avoid conflict. The prospect of conflict and a fight within an adversarial system steeped in litigation is, for some, a deterrent. Not everyone can stomach it. Far from ensuring children grow up with close relationships with both parents where safe to do so, our system leads a significant percentage of children to lose a relationship with a parent. They choose to melt away and drop out of a child’s life. Flight is better than fight.
Again, we need to address this by the language we use. In the absence of safety concerns, a child has a right to enjoy a relationship with both parents; unless there are safety reasons, it is harmful to a child to deny them a relationship with their other parent.
A time for change
These messages need to be widely understood, and parents and children need to be hearing the same message wherever they turn. We no longer live in a society where family breakdown is a matter for litigation, where relationship turmoil is played out through lawyers and courts.
The Family Solutions Group report challenges us all to reflect on the language we use:
The task of parenting a child continues from birth until well into adulthood. This task continues for parents who are together, for parents who are separating and for parents who have separated. The end of a couple relationship does not mean an end to parenting responsibilities; they may be exercised differently post-separation but they continue, nonetheless. In short, we need to reframe language in the information and support which precedes the justice system, to that of two parents who, where safe to do so, will continue the task of parenting from birth until adulthood, whether together, separating or separated.4
Good news is that we are in a season of change. The Private Law Advisory Group is working with experts to redesign our system for parents who struggle to agree child arrangements. Pathfinder pilots are being planned for Dorset and North Wales, and no doubt careful thought will be given to the language which surrounds the pathways on offer.
We also have new divorce legislation coming into force in April 2022, and this will inevitably generate media attention. This is a perfect opportunity to reframe our national vocabulary for family breakdown. The Family Solutions Group has called upon government for a national public education campaign, to reframe outdated cultural attitudes towards a 21st century understanding of family relationships and child welfare.
We know there are many practitioners who are troubled by the inappropriate language used in our field. Emma Nash at Fletcher Day is launching the Family Law Language Project. The purpose of the project is to improve the use of language in family law to help make the family justice system less acrimonious and more accessible for all but particularly to children. Anyone interested in contributing ideas and/or resources, please contact Emma Nash at Fletcher Day.
It is also worth mentioning FrameWorks UK, which specialises in this field: how you frame a message affects how it is received. FrameWorks UK operates on a project-by-project basis, often funded by a coalition of partners for a particular cause. If there were ever a cause which needed reframing, it is the system parents who get into difficulties when they separate. Is there scope for a coalition of partners in our field to commission FrameWorks UK to take on this task? Anyone interested, please contact Helen Adam at email@example.com
To paraphrase Orwell, we must not let the language currently used for the family justice system think society’s thoughts for it. A new language is needed and now is the time for change.
Acknowledgement: my thanks to Dr Jan Ewing, and indeed to all members of the Family Solutions Group for their ongoing contributions to these discussions.
This article was first published in the August 2021 issue of Family Law and is reproduced with permission. You can subscribe to Family Law here.
Here at The Wells Group, we are committed to ensuring the best outcomes for children when parents separate. That’s why we offer all families an invitation for child inclusive mediation as part of our divorce process. For more information, speak to a professional today.