Plain and Simple: Language in Family Proceedings
By Molly Nathan, Trainee Solicitor at Simons Muirhead Burton
Over the years, guidance has been given to family lawyers through various forms of literature encouraging lawyers to communicate amicably and to always bear in mind the impact upon the reader of correspondence. Initially there was the Family Law Protocol which advised that lawyers should communicate in a non-confrontational and constructive manner designed to preserve dignity and encourage agreements. Resolutions’ Guide to Good Practice was then published which also encouraged lawyers to use simple language and not legal jargon as well as considering the tone and content of letters.
As society has moved on and family law is moving into a much more amicable setting (reinforced by the recent introduction of rules surrounding Non-Court Dispute Resolution), it is pleasing to note that there has also been an update in the Family Procedure Rules 2010 (FPR). These rules play a pivotal role in governing family law proceedings in England and Wales. Practice Direction 9A of the FPR has been amended to address a crucial aspect of legal communication: the use of client-friendly language.
Practice Direction 9A focuses on applications for financial remedy ancillary to a divorce. Notably, it emphasises the necessity of clear and accessible language in all correspondence relating to such applications. The introduction of the Practice Direction requires practitioners to consider the following:-
‘lengthy and unnecessary correspondence must be avoided and the parties must seek to identify the issues as soon as possible. The impact of any correspondence upon the reader must always be considered, particularly the first letter.’
This amendment underscores the importance of client-friendly language in family law proceedings as well as focussing on identifying the issues as soon as possible which will ultimately enable the parties to resolve matters as soon as possible.
This change to the Practice Direction will undoubtedly enhance the communication between clients, lawyers, and the court. Practitioners should wholeheartedly embrace this approach to ensure effective representation and a positive experience for all parties involved.
When preparing correspondence, we would ask practitioners to place themselves in the position of the client - whether it is a divorce, children matter, or a financial settlement. The client is already navigating a stressful, emotional and sometimes devastating situation. They should imagine what it would be like receiving correspondence from their partner or ex-partner’s solicitor. If it is lengthy, aggressive, and filled with legal jargon they are going to feel overwhelmed, intimidated, and perhaps frustrated.
Legal jargon can alienate clients, making them feel like outsiders in their own case. As practitioners, it is crucial to put ourselves in the client’s shoes and communicate in a way they will be able to understand, and to enable them to provide their instructions. Clients seek simplicity – they want to comprehend their rights, obligations, and options while avoiding legal terminology where possible.
Instead of a combative approach, which involves aggressively debating every issue to seek advantage, escalating conflicts, and treating opposing parties as adversaries, family lawyers should work together to resolve clients’ cases in the best way possible. They should emphasise collaboration, empathy, and problem-solving: Here’s why:
Children’s Well-Being: When parents are in conflict, children suffer. Their emotional health, stability, and sense of security are threatened. A non-combative approach in family proceedings prioritises the best interests of the children.
Long-Term Relationships: Divorcing spouses may need to co-parent or maintain some level of interaction. A hostile separation damages future communication and cooperation.
Emotional Toll: Legal disputes take an emotional toll on all involved. A non-combative approach acknowledges this and attempts to seek amicable solutions enabling both parties to move forward more quickly.
Cost and Time: Lengthy court disputes drain finances and the more acrimonious, the longer it will likely take to resolve. Mediation and negotiation can be quicker and more cost efficient. This is more likely to be achieved if the parties are willing to work together and are encouraged to work together.
Preserving Dignity: Clients deserve respect and dignity. A non-combative approach allows them to maintain their self-worth even during this difficult time in their lives.
In summary client-friendly language and a non-combative stance in family proceedings helps promote understanding, cooperation, and better outcomes for all parties involved.
