Legal language

Witnesses in the court room often feel that they have to emulate those who have been doing the talking up until then: the lawyers. As a result they do not do themselves justice as they sound false.

Similarly, litigants writing, say, to solicitors on the other side or preparing a document for a Judge feel the need to use legalistic language. The lawyers can then take a delight in spotting the various solecisms, the incorrect references, the meaningless jargon that transpires. If only the writers simply used plain English.

One of the best opponents I had in court was a mother, acting for herself in court, many years ago. With a series of short sharp submissions, she completely destroyed my case which was dismissed.

Too many guardians

The word "Guardian" frequently crops up in court, particularly in cases concerning children. But unfortunately, in law, it has a variety of different meanings. I say "unfortunately" because it is a good word which carries with it notions of protection - but the numerous different meanings the word carries can lead to misunderstanding and even panic. Let me illustrate.

Most lay people would think of the word as referring to the person whom a parent appoints to look after a child either when the parent is absent for an extended period or in the event of the parent's death. Like the term "common law wife" (which is not known to the common law), the term "guardian" in circumstances where the parent is alive and, say, abroad and has appointed someone to look after a child is a misnomer. Anyone with parental responsibility may arrange for some or all of it to be met by one or more persons acting on their behalf (section 2(9) of the Children Act 1989). A school teacher or a babysitter are examples; the Latin term "in loco parentis" is the correct way of referring to such persons acting in that capacity. But such a person does not become, in law, a guardian. On the other hand, a parent may appoint another individual to be the child's guardian in the event of that parent's death: section 5(3) of the Children Act 1989. Disputes sometimes arise if, say, one parent separated from the other appoints a guardian, then dies; and then the surviving parent disagrees with the appointment. But any such dispute would be resolved by an application to the court for appointment as a guardian or for a "child arrangements order" where the child's best interests would be of greatest importance.


Then there are special guardians. These are a relatively new concept, created by the Adoption and Children Act 2002. Special guardianship orders give the special guardian (or special guardians - a child can have more than one) parental responsibility for the child concerned. They are intended to provide permanence and security for those children for whom adoption is not suitable but who cannot live with their birth parents. The basic legal links between the child and his birth family are preserved. But importantly a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child, apart from another special guardian: see section 14C(1)(b) of the Children Act 1989.


Next, children's guardians: in the term, "children" is always plural even if there is only one child for whom the children's guardian has been appointed. Until quite recently, the children's guardian was known as the "guardian ad litem" but this term was modernised. Children's guardians are appointed in various sets of proceedings such as care proceedings when, often, the state in the form of the local authority is seeking to remove a child from the care of the birth parents. They are the eyes, ears and voice of the child in court, attending court hearings and providing an independent view. In my experience, while children's guardians regularly agree with the position taken by the local authority, on occasions they do not: and their view is often decisive. Courts do not have to follow the view of the children's guardian but they are required to give adequate reasons if they do not.


In cases where the parents (and/or extended family) are in dispute in relation to a child's welfare but the local authority has not brought any applications, it is rare to have a children's guardian. But the court may do so in cases which involve an issue of significant difficulty.


Then there is the guardian of the estate of a child...


Too many Guardians? I think so. I have on occasions needed to spend some time explaining to an anxious client that the "children's guardian" is NOT somebody with whom the child will be living. I think the term "special guardian" is awkward (does it follow that any other type of guardian is less than special?) and the term is still not understood outside legal circles. I have been toying with new titles and, of course, new difficulties are immediately thrown up, but here are my suggestions:

A guardian appointed by a parent: a guardian.

A children's guardian: a child's welfare officer (return to an old term).

A special guardian: a conservator (used in some other jurisdictions).

The guardian of the estate of a child: a child's trustee.

What to call a Judge (2)

In a previous post, I was exploring the ways in which we address Judges. Be relieved that unlike in the Chancery and Queen's Bench Divisions, there are no Masters of the Family Division. They are addressed as "Master". It is a curious term. It carries with it contrary notions of aggrandisement (as in the old-fashioned but still legally current master-servant relationship) and diminution: monarchs have been known to address their subjects thus. The term is also still properly used as a prefix to address a letter to a (male) child: I still recall the excitement of receiving such letters.

But what happens when, as has happened in recent years, a woman has been appointed to the position? Master Fontaine has just been elevated to Senior Master but I appeared before her when she was newly appointed. Knowing I had to open the case, I asked my much more senior opponent how I should address her. He didn't appear to know: "Master, Madam?", he mused. So when we went into court I simply raised it as a preliminary issue.

"I wonder how I should be addressing the court", I said at the outset.

I felt a little as must have the MP speaking in the House of Commons when he suddenly realised that Betty Boothroyd had taken the Chair for the first time as Deputy Speaker. She was, of course, the first woman to fill that role. Her tart response to his fumbling enquiry was: "Call me Madam".

Master Fontaine, on the other hand, addressed my rather gauche enquiry with reassuring pragmatism: "Just call me whatever you feel comfortable calling me". I decided that "Mistress" would be impertinent.... So I simply continued the practice I was used to in that particular room and called her "Master". What will happen, I wonder, when the first female Master of the Rolls is appointed?

More on this topic later.

The dangers of muttering

When the Judge I was in front of complained of the time the case was taking, one of my opponents made the mistake of muttering words to the effect that it was the Judge who was delaying things through constant interruptions.

"Please don't mutter. I can hear you perfectly clearly", said the Judge which rather begs the question why she was asking the mutterer not to do so.

It reminded me of an occasion a number of years ago when I said in a stage whisper to a court clerk that I hoped the Judge was not going to miss his lunch and the Judge thought I was making a cheap jibe about the time HE was taking. A red face and swift apology from me followed.

What to call a judge

Our constitution is a patchwork of law and custom: and that is reflected in the way we address our Judges. If a justice system were being set up from scratch, the powers that be might have tried to be consistent.

So if you are in front of a bench of magistrates, you address the magistrate chairing the bench as "Sir" or "Madam". Some lawyers address them as "Your Worships" although a magistrate is not strictly entitled to be so-called unless that magistrate happens also to be a Mayor.

District Judges, likewise, are addressed as "Sir" or "Madam". I once read somewhere that "Madam" could be shortened to "Ma'am" (to rhyme with ham) on the basis that what is good enough for the Queen is good enough for one of her judicial representatives.

I have never discovered a satisfactory way of referring to District Judges in the accusative. "Has Sir read the papers?" sounds like salesassistantese. But custom says that one is not supposed to address the court as "you". Nor, incidentally, should one ask a direct question of the court. "I wonder whether Sir has read the papers" sounds equally bad, not least because its directness has not entirely been lost. it might embarrass the Judge who has NOT had such an opportunity. I tend to cheat on such occasions by saying something like "I wonder whether the court has had an opportunity to consider the contents of the mother's statement dated x". A little long-winded but better form.

And how often should we use the form of address, whatever it may be? A question I am often asked by clients. In the first criminal trial I ever saw, a police officer (no doubt very used to giving evidence) answered with "Your Honour" at the end of every answer. "Yes, Your Honour", "No, Your Honour". It sounded rehearsed. My advice to clients tends to be: use the form of address as often as an intelligent sixth former would use it in addressing the Headmaster.

I will consider the way we address other kinds of Judge in a later post.