A word means ‘what I say it is’
The meaning of a word must be precise in law. Poetry and some prose can paint with words, meaning moving about the page. In humour meaning may be intended to shift or turn around the same word. Humour – as with Humpty Dumpty’s law (Through the Looking-Glass Lewis Carroll): that a word ‘means just what I choose it to mean’ – plays with words. Meanings shift, or are shifted, deliberately. This is what humour does. But law must build with words; and it must build carefully. Good law demands clarity. Clarity is the direct way to understanding.
Three expressions in common legal use can be used to show how the building of structures in law can be corrupted by imprecision: ‘transparency’, ‘disclosure’ and ‘family justice’. The first – ‘transparency’ – has been hijacked by senior family lawyers to mean chosen journalists seeing into what the family courts do. It is not – so far; and thank goodness for it, so far – a word which any statutory instrument or practice direction has tried to define.
Transparency, in this family lawyers’ context, means the opposite of what the law says. It is a common law principle that justice must be seen to be done; and that therefore courts must be open. It is of the essence of justice – it is implied in the word, almost – that it be open. But it is accepted by the common law and by statute that there will be times – children proceedings are the easy example – where the need for privacy in a case will override openness; and it is that way around. It follows from these premises, that family law and transparency have nothing to do with one another. It is justice which is transparent. On occasions that transparency may be – rightly, and in the interests of family welfare (say) – eclipsed. Like the moon, when it is eclipsed, the openness remains. It is only temporarily hidden as required in the particular case.
‘Disclosure’ – in law – means that a litigant (A) sets out in a list for his opponent (B) what documents he has. That is not how most laypeople would understand the term; and it is often similarly muddled, carelessly, by lawyers. Once A has listed – disclosed – what documents s/he has, s/he permits inspection of the documents which B wishes to see, normally by sending photocopies. A and B then co-operate, as trial approaches, by preparing a bundle of documents. These are produced to the court. So in truth – and in law – it is inspection and production (the words italicised above) which is what procedural rules require of litigants; and it is this process, confusingly, which many lawyers wrong call ‘disclosure’.
‘Family justice’: justice on family breakdown
‘Family justice’ does not mean justice for the family: it means, or should mean, justice on family breakdown. In practice it has come not to mean justice for all broken families: it means justice only for those with children. This is a remarkably irritating corruption of a perfectly sensible term. It is only a minority (albeit a large minority) of the cases on family breakdown which relate to children; yet it is only that minority – since, for example, the setting up of the ‘Family Justice Council’ – which effectively attracts the previous portmanteau term.
Does all this matter? Yes it does. If I ask for ‘disclosure’ of documents and you send me a suitcase full of bank statements, utilities invoices, company accounts and so on, when I expected – or should have expected – only a four page list, then someone’s time and part of a tree have been wasted. If I speak of ‘family justice’, when I want to write or talk about – all issues relating to family breakdown – for example the work done by the family courts or covered by Family Procedure Rules 2010 – and you mean only children proceedings, there is potential for a range of misunderstandings. And if I tell you, a journalist friend of mine, that the family court has become ‘transparent’ when in reality some of its proceedings are – or should be – entirely private, then I shall have mislead you as to what the law is.
Clarity must rule
Sir James Munby P speaks of ‘transparency’. Family Procedure Rules 2010 assert that, save where otherwise provided, all proceedings under the rules are ‘private’. In fact both those assertions are, I believe, unlawful. Whatever the President of the Family Division may be entitled to do, the rules may not state something which is unlawful; and nor may I mislead my journalist friend.
And so the discussion comes full circle: to clarity in law. Each word must have a clear meaning which you and I (as lawyers), both understand to mean the same thing; and each word must have the same meaning when we communicate with others. Each building block – each word – must be clear. The structure which the words create will then be strong. Meaning will be as clear as possible. Circumlocution (eg ‘family justice’) or inaccuracy (eg ‘transparency’) can be eliminated. Perfectly respectable words can be restored to their primary use. The structure of communication is further reinforced. Clarity rules.