Old legal parchmentAnyone who has been unfortunate enough to have dealings in the Family Court knows that ready access to justice is critically important when matters of marital property and child welfare are at stake. Access to justice is often talked about in terms of cost, and this is a serious obstacle to many especially since cuts to Legal Aid have started to bite the most vulnerable. However, access is also about accessibility: given a judgment from a court, can the average person understand it?

Judge: Your client is no doubt aware that Vigilantibus, et not dormientibus, jura subveniunt?

Lawyer: In Barnsley, my Lord, they speak of little else.

This quote, while probably apocryphal, isn’t far from the truth. Law students spend months learning to read what judges write, interpreting their ample verbiage, memorising their arcane snippets of Latin. Things have improved a little over time—most notably in 2004 when arcane terms like certiorari were replaced with plainer language—but the average layperson would struggle to understand the diverse terms of art to be found in court proceedings.

There are good reasons why judgments are written in this way, not least of which is that the decisions of higher courts can be binding on future cases. Legal professionals need the technical detail to understand how decisions were made, what they mean for future litigants, and whether anything about them can be challenged on appeal. Unfortunately a result of this is that judgments are not readily understandable by the people they affect most directly.

This cannot be right. When the law touches the lives of ordinary people, its actions and decisions should be accessible to ordinary people.

In 2017, a 14-year-old boy was at the centre of a torrid series of court cases: his parents had split up and his father wanted to take him abroad permanently. When the case reached a High Court judge, he addressed his decision directly to the boy in a judgment called A (Letter to a Young Person), Re (Rev 1) [2017] EWFC 48. In stark contrast to the dense and dispassionate tone lawyers are used to, the judge began like this:

Dear Sam[1],

It was a pleasure to meet you on Monday and I hope your camp this week went well.

This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents.

The letter runs to 27 paragraphs and addresses the boy as someone with a mature intellect but who lacks any legal training. His parents are referred to as ‘mum’ and ‘dad’ instead of ‘the child’s father’ as is more common in traditional judgments. The tone is formal but kindly, and follows the mechanism behind the judge’s decision logically and pedagogically. Anyone who reads the letter carefully would have a good understanding of why things ended up the way they did, and would probably learn a few things about family law.

The judge ends by saying—

Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself. I know that as you get older, you will do this increasingly and I hope that you will come to see why I have made these decisions. I wish you every success with your future and if you want to reply to this letter, I know that your solicitor will make sure that your reply reaches me.

These sentiments probably run through every Family Court judge’s mind several times a day, but to express them so clearly and directly is valuable in several ways. It gives the boy an insight into how a decision was made that will have a huge effect on his life; it could help the parents to see through the fog of post-marital war; and it helps the wider public understand how such cases work and perhaps even gain the wisdom to avoid Family Court altogether. Justice is seen to be done in the clearest possible way.

I feel that this example of accessible justice should inform the behaviour of any court when dealing with lay litigants, whether represented by lawyers or not. A case doesn’t have to happen in the Family Court to have dramatic effects on the parties, and where that is the case, they should receive a judgment that they can readily understand. If necessary there should be two parallel judgments: one definitive (and perhaps binding) judgment, and another in the form of a letter explaining the judge’s reasons and the effects of the decision. There is a maxim to the effect that, if you can’t explain something to a layperson, you don’t really understand it yourself; the letter should be drafted with this in mind.

As with any major change in the law, Parliment must lead the way. Of course it must clean its own house by eliminating nonsense like this, sweeping away the crust of antiquated procedure and tradition in favour of clarity and transparency—but bringing accessible justice to those who need it most cannot wait for general reform. Rendering impenetrable judgments to laypeople merely amplifies the law’s image as an inaccessible beast encumbered with a thousand years of dusty wigs and gowns. Those most in need of justice—particularly the young—deserve better, and they should receive it in plain language.

[1] Sam isn’t the boy’s real name. Judgments involving young or vulnerable people are usually anonymised, hence the name of this case (‘Re A’). The judge used ‘Sam’ so that the letter would read more naturally in the anonymised judgment.