One of the downsides of being a solicitor is that we are professionally trained to nit-pick. In particular, one of the things that sets our teeth on edge is inaccurate legal terminology.
It is excusable for lay people to get the terminology wrong; after all, they are not legally trained. It is arguably less excusable where experienced journalists and other media-types get it wrong.
The litigation in Utah recently between Gwyneth Paltrow and Terry Sanderson threw up a number of examples of inaccurate terminology. There were reports that Paltrow was going to stand trial; in my experience, you stand trial in criminal cases, not civil ones. Other reports referred to Sanderson’s lawyers as prosecutors; they are nothing of the kind. His lawyers were not acting for the prosecution. She wasn’t being prosecuted, she was being sued. They were acting for the plaintiff (in England, he would be called a claimant nowadays, plaintiffs having vanished from civil litigation cases in the late 1990’s).
Another example is people who talk about getting married at the Registry Office. They aren’t called Registry offices; they are Register Offices (or sometimes Registration Offices).
The word that really gets up family lawyers’ noses when they hear it is “custody”. Time and again, the media refers to disputes about children as custody cases. A recent article about the possible introduction of compulsory mediation in children disputes by an eminent family solicitor was marred by the paper’s decision choice of headline. To her chagrin, her article’s headline was “Mediation can stop ugly custody battles going to court”.
Custody as a legal concept in family law was abolished by the Children Act 1989. It came into force in October 1991. Custody orders were replaced by residence orders. At the same time, access orders were replaced by contact orders. There has been no such things as custody in family law for over thirty years, yet still the media insists on talking about custody.
Now I accept that common usage often leads to people using the wrong expression. For example, I spent many, many years wrongly referring to Tesco as “Tesco’s”. Nevertheless, in my experience family lawyers generally have a visceral reaction to the word custody. It is so wrong, it makes our blood boil.
Some journalists noticed that custody orders had been abolished, and started talking instead about people having to apply to the court for residency orders, which is also very wrong. They were residence orders.
It may be excusable (just) for non-legally qualified reporters to get the terminology wrong, but it is downright unforgivable for lawyers. About 25 years ago, I acted in a case where the father’s solicitors had applied to the court for a “residency order”. It was unfortunately one of those cases where the father’s solicitors did not have a clue what they were doing and were unwisely dabbling in family law. I recall the judge grumbling in court “There’s a tone about them, isn’t there?” (The solicitors were not present, as they were based a long way from Colchester and had sent a barrister to represent their client. I imagine that the barrister’s heart sank when she read her brief before the hearing.)
This may sound like pointless pedantry to non-lawyers, but it is important that solicitors get the words right. I once had a colleague who insisted on referring to “Prohibitive” Steps Orders, instead of Prohibited Steps Orders. She also had a thoroughly irritating habit of referring to the Children’s Act instead of the Children Act. I tried to gently point out that if she used the wrong terminology, other lawyers would assume that she did not know what she was talking about, but I don’t think the message ever sunk in.
Residence orders and contact orders were themselves been replaced in 2014 by child arrangements orders, usually rather clumsily referred to as “live with” child arrangements orders, or child arrangements orders for contact. While I must admit to never having been crazy about that change (there is no real difference between them and the old residence and contact orders), I always use the correct terminology.
If you ever encounter a solicitor who purports to be a family lawyer, but talks about custody, run a mile.
1 April 2023
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