The Language of “Disguised Compliance” in Family Law

A recent case has given me pause to consider the way language is deployed in Family Law – it also gave me cause to revisit an article by Paul Hart exposing the issue of ‘disguised compliance’. Clearly, in-spite of Mr Hart’s efforts, the use of disguised compliance still exists. Ultimately, this article addresses in generality the issues of the way we use language in family proceedings and it becoming jargon. Callum Brook unpicks the argument.
Callum Brook - Disguised compliance

Disguised compliance has become so ubiquitous that the fundamental meaning of the phrase has been lost. When asked to define it, most will struggle to muster something close to a rationale for the phrase and its deployment into their statements.

Let us be clear, as was the previous article, it is not disguised compliance – it is in fact disguised non-compliance.

Parents are often accused of paying lip service to the Local Authority. It often follows that they identify on the surface what the Local Authority’s concerns are and then embark on a sophisticated campaign of deceit. This is in order to fool the professionals in care proceedings to achieve their ultimate aim, the return of their children.

Now, it may well be the case that parents who are familiar with the processes and rigours of public law proceedings embark on such a campaign, but for most, it is disingenuous to suggest there is that level of connivence in their behaviour as to effect such a level of deceit.

Why then, is language important? Going back to first principles, any lay individual across any jurisdiction should be able to understand what the case is about. Whether that is in the form of advice from their representative or in the written documentation. Evidence should be drafted in a fashion that an individual reading it for the first time would be able to understand the basics of where, when, what, why and how proceedings had come about.

If we adopt a proposition that a substantial number of parents in care proceedings are vulnerable individuals with their own needs – whether that is caused organically or environmentally, their level of understanding is going to be diminished. This is further confounded by a use of language that on occasion is not commensurate with the ordinary meaning of the words and phrases used.

In family law, we have become used to umbrella phrases, ways to describe behaviour and presentation of individuals to suit the particular aim of a party during the course of care proceedings. Disguised compliance is just one of them.

Professionals inevitably find it easier to identify ‘catch all(s)’ – behaviours which a ring can be thrown around.

Another example of a parent is ‘lacking insight’. A level of introspection that they are able to recognise their own behaviour as objectively wrong or having the potential of causing harm to a child. Insight has become a broad church and can vary in degrees. It is perhaps confusing to blanket a parent’s lack of subjective reasoning as lack of insight – it is defined as a ‘deep understanding’, unsurprisingly deployed in psychological assessments. It is more problematic when it is casually written into assessments and statements when no true psychological assessment of a parent has taken place.  

Some parents will be able to identify their behaviour is objectively wrong. Indeed they will understand the harm – they have insight. The fact they choose not to take action to rectify that behaviour, is not a lack of insight, it is a lack of motivation to change.

Issues need to be broken down into their constituent parts. This will allow parents to fully appreciate what it is that is expected of them and why to those of us observing their behaviour, it is appropriate for their behaviour to change.

Most people can demonstrate a superficial understanding of what is right and wrong and the consequences of their behaviour.  We need to be careful about the stock phrases we use and whether to the ordinary person, they are easily understood and their aim is achievable within the ordinary meaning of the word.

To conclude, it seems we have become over reliant on jargon in the course of public law proceedings, and I can appreciate that when a word seems to fit, why not use it. The problem is, when we cast the net wide, or use the wrong word, meaning is lost, and understanding is lost. As a result, for those of us not familiar with the court process and its nuances, engagement is much more difficult and for parents attempting to achieve their aim, it can become unreachable.

Central Chambers has a family team with experience in representing applicants and respondents in complex multi-jurisdictional cases and has facilities to enable simple and easy online conferences with any relevant party.

If you would like to instruct Callum Brook or another member of the family team, please do not hesitate in contacting the family clerks by clicking here or by calling on 0161 236 1133.