These days we seem to be fixated with terminology. Sometimes, the word that we use to refer to a thing seems more important than the thing itself. And the word can transform a bad thing into a good thing overnight: call a failing school an ‘academy’ and suddenly everything is all right.
And so it is with family law. As I’ve said here in a previous post, the family justice system is particularly partial to frequent changes in terminology. One of the examples I gave in that post was the way in which the terms ‘custody’ and ‘access’ transmuted into ‘residence’ and ‘contact’, and thence into ‘child arrangements orders’. The problem, however, is that the public and, in particular, the media have not kept up. As demonstrated clearly by the current Minnock case, they still insist upon using the original terms ‘custody’ and ‘access’. This is probably partly because those terms were in use for far longer than their modern counterparts and are therefore better understood (in general terms), and partly because, rather like with transparency, the public and media do what they want to do, not what we family lawyers want them to do.
Now, I accept that there were actually some good reasons for abandoning the terms ‘custody’ and ‘access’ (more of which in a moment), but I don’t feel any sense of outrage when I come across them being used. This is not so, however, for everyone involved in the family justice system. Many seem to get quite angry that the terms are still in usage, and I have even seen them being referred to as ‘degrading’. Are these terms really degrading?
The terms ‘custody’ and ‘access’ were, of course, replaced with ‘residence’ and ‘contact’ by the Children Act 1989. The Children Act enacted the recommendations of the Law Commission in its 1988 report “Family Law Review of Child Law Guardianship and Custody”. Part IV of the report deals with the recommendation to introduce the new orders, and explains the reasoning behind the recommendation. Unless I’ve missed something, nowhere in that reasoning did the Law Commission suggest in any way that it considered the old terminology to be degrading. The primary reasons for the recommendation were that the old terms were misunderstood and, most importantly, that the old orders concentrated on the allocation of ‘rights’ between the parents rather than responsibilities.
So, where did this idea that the old terms ‘custody’ and ‘access’ are degrading come from? It seems to me that it has gained traction in the years since 1989, as more ‘modern’ ideas regarding the resolution of disputes over arrangements for children have taken hold. ‘Custody’ of course has connotations of control (which often used to be part of the longer term ‘custody, care and control’), and it obviously also its criminal law usage of ‘imprisonment’. ‘Access’ perhaps has a connotation of ‘being allowed’ by the other parent. Such connotations are no longer considered to have any place in modern family law.
But does that make the terms degrading, or is such a description merely an example of hyperbole being used (as it so often is these days) as a means of emphasising distaste?
As I stated above, the old words ‘custody’ and ‘access’ are not just still in widespread usage (including, it has to be said, by most English-speaking people outside of England and Wales) but are also generally understood by the lay person, even if their precise meaning can be misinterpreted by parents involved in disputes. I may be wrong, but I don’t think lay people intend to use the terms in a degrading way, or consider that they are degrading. They are just terms that are regularly used – a situation that is likely to continue, whatever lawyers and law makers say – and the layperson who uses them is not thinking about connotations of control, or anything else.
The important thing, though, is whether the parents involved in the disputes to which the terms refer feel degraded by their use. I really don’t think they do – they see the terms in the same way as any other lay person. A parent who does not have ‘custody’ or who is granted ‘access’ may feel aggrieved at the decision, but they do not feel degraded.
In short, whilst it may be true that the old terms are no longer ‘quite right’, that does not make them degrading.
But does it matter if we criticise others for using the wrong terminology? Well, yes, I think it does, particularly if it is done in such an aggressive way. I think we need to keep our views to ourselves, rather than suggest that, at best, those who persist in using the old terms are ignorant or, at worst, that they are degrading the parents involved in the disputes to which they are referring, when that is almost certainly not their intention (as with the BBC presenter interviewing a lawyer about the Minnock case the other day). Making such a point makes us seem more aloof and out of touch, at a time when we are supposed to be showing ourselves and the system off in a favourable light.
Image by Lukas Benc via Flickr