This post is a guest post by Anna Yarde. Anna is a children barrister at Harcourt Chambers.

This commentary is intended for lawyers to read and for lay parties to benefit from.

A Guide for Lawyers – Improving Transparency in the Family Court

Written Advocacy – and who is it for?

The obvious answer is “the Judge and the parties”. But will your closing submissions hold meaning for the vulnerable parents in care proceedings who desperately need to understand why their child might be adopted? Will those submissions empower the journalist sitting at the back to report with accurate details and a robust understanding of the complex legal principles being deployed? And, perhaps most importantly, what will your words tell the subject children about their life story when they request their case files in 10 years’ time?

Because no matter how erudite your submissions are, there is more to written advocacy than simply arguing your case.

Disclaimers: 

1. This article will not tell you how to write your closing submissions. Once you have prepared thoroughly, asked your finest questions, taken your cues from the Judge and listened to your client, you are the best judge of that. Trust your instincts.
2. Not all hearings lend themselves to relying solely on user-friendly written documents, nor do advocates always have the necessary preparation time for each case. You may wish to consider:
3. Preparing a short, user-friendly summary to accompany lengthier written submissions.
4. Planning an alternative way to ensure that vulnerable parties can understand and respond to written submissions. For example, could you ask the Court to set aside an hour of Court time for post- closing submission conferences (with the support of an intermediary or advocate, if one has been appointed)? Any further representations could be made before the Judge delivers the decision and lay parties will have been given a meaningful opportunity to engage.
5. Just doing your best. Even adding some short headings to improve structure or removing a few unusual (potentially alienating) words can improve accessibility.
6. User-friendly documents are, ironically, difficult to write. They take longer. Be prepared.
7. Using user-friendly language can feel counter-intuitive. Having spent countless hours (and ££££££) studying law, learning advocacy skills, and gaining experience in practice, it is easy to fall into the trap of feeling that it is important to prove that it was worth it. Or that everyone else will think that you can’t use complex grammar and nice words if you don’t. It helps to remember that a well-argued case doesn’t become less well argued because it is accessible to everyone in the room. Your client’s voice is the most important one.

Preparing user-friendly submissions is not just an advocacy skill. Learn from others.

1. Listen carefully to intermediaries in conferences. Read, then re-read, cross-examination feedback.
2. Consider how easily your words will translate into another language. Work collaboratively with interpreters.
3. Examine journalists’ reporting of cases. Notice where there are (obvious) inaccuracies and ask yourself why (and how it could be avoided). Use footnotes.
4. Read accessible judgments.

Sometimes, the most difficult part of making a change is getting started. If you are staring at a blank screen and wondering where to start, here are some prompts:

Instead of:	Perhaps use?
This case concerns the welfare of A (DOB 1) and B (DOB 2).	This case is about A and B. A is 2 years old. B is 1 year old.
The Local Authority respectfully invites the Court to make findings, in the terms of the final composite Threshold document, on the basis of the written and oral evidence heard during the Final Hearing.	The Local Authority wrote a Threshold document. It said what had gone wrong for the family and why the Local Authority decided to bring the matter to Court. The Court should read the papers and listen to what the witnesses said, before deciding what really happened.
The Local Authority pleads its case based on the parents’ neglect of the children due to their own lack of insight and understanding. This has not improved, despite X being apparently motivated to make changes and wanting to care for the children.	The Local Authority’s case is that the parents neglected the children. This happened because X was overwhelmed and did not understand the children’s needs. It is not because X is a bad or cruel person. It is not because X does not love the children or want to care for them. Being a good mum is important to X.
The Court should direct itself in accordance with R v Lucas [1981] QB 720: ““that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything” As a result, the Court can properly infer that…	Lucas The Local Authority says that X was deliberately untruthful about Y. This does not mean that X has lied about everything or is a dishonest person. But it is relevant to whether X has told the truth about other things…
The Court must undertake a holistic welfare determination, considering all realistic options that have been identified and assessed (including any that have been proposed and/or explored during the course of the final hearing and, in particular, through judicial questioning).	The Court must look at all the realistic options for the children. It must weigh up the pros and cons for each option and decide whether to make the orders that the Local Authority has asked for or not. The Court could choose a different outcome for the children.
X loves her children very much. She puts herself forward as a carer for the children and believes that she is best placed to meet their needs in the long-term.	X loves her children very much. X says that the children should live with her. She is the best person to look after them.

For even better inspiration, utilise the recent shift towards Judges (a) producing accessible judgments, and (b) publishing more judgments to increase transparency in the Family Court:

Re GG (A Girl) & Anor [2024] EWFC 101(B)

In Re GG, HHJ Vincent produced a “Short Judgment”, followed by a “Longer Judgment”. The short judgment:

1. Does not rehearse the law.
2. Uses straightforward language:

“The judge knows that the children do not want to talk about their mum and do not want to have any therapy that is about making them see their mum. But the judge still thinks therapy may help them. The children have been through a lot of changes. It would be good if they could have some help to understand what they have been through, to express their own feelings, and to recover from the difficult experiences they have had” [paragraph 13].

“The judge has decided to ask the local authority to see if it could help with the therapy, or else to see if it may have another idea about how to help the children and their parents” [paragraph 15].

“These are the reasons the case is going to carry on for a little bit longer” [paragraph 17].

• Connects the Judge’s decision-making to the parties:

“The judge wanted to understand why the children’s feelings about their mother are so strong” [paragraph 8].

“The judge was worried that the children’s understanding of what had happened in their lives was coming too much from stories told to them by their father, and was influenced too much by his own strong feelings about their mother” [paragraph 9].

“The judge knows this is not what the children want. But while there is still a chance that the family could get some help the judge thinks it is worth trying” [paragraph 16].

The parties can choose whether to read the longer judgment. If the children choose to request their case files in adulthood, they will have a clear understanding of the evidence, the Judge’s reasoning and the significance of the decision to the Judge. By making it accessible and using their own language, HHJ Vincent sends a clear message that they are important, and their voice has been heard.

Re Billie (A Child) (Care and Placement) [2024] EWFC 106(B)

HHJ Willans included a “Summary of judgment” in a clearly formatted, separate box at the start of his Judgment in Re Billie. The paragraphs use letters, instead of numbers, which also helps to separate the two documents.

The summary judgment includes helpful summaries of the law (without labelling them as such):

1. Threshold: “I have decided that Billie was at risk of suffering significant harm at the time she was born. This is because of the challenges the parents face which were added to by continuing to use drink and drugs. The parents had enough to deal with and this did not help them make sure everything was focused on doing the best for Billie” [paragraph D].
2. The welfare checklist: “I have thought carefully about what is best for Billie and looked at all her needs” [paragraph H].
3. A holistic analysis: “I have looked at the good bits and the bad bits of being with her parents and the good and bad bits of adoption. Neither is perfect and it is for me to make the decision” [paragraph H].
4. The test for adoption: “I have had to decide whether Billie should live with her mum and dad or have a new adoptive family. I would only pick an adoptive family if I felt there was no other option that would make sure Billie received good enough care” [paragraph A].

HHJ Willans concludes his summary with a straightforward message: “I have disagreed with the parents and I have made [an] order that plans for adoption. I want the parents to know they have told me everything they could to persuade me to place Billie with them and that their lawyers have tried very hard to persuade me. Sadly, I have not agreed” [paragraph L]. In doing so, HHJ Willans acknowledges the likely importance to the parents of their child knowing that they “did not stop fighting” and did their best. It is a message that the parents (and child) may wish to return to and re-read throughout their lives, as they endeavour to understand and process the loss caused by the making of Care and Placement orders.

By producing very short summaries to accompany longer judgments, both HHJ Vincent and HHJ Willans have ensured that their decisions are for the parties and not just about them. And isn’t that what we should all be aiming for?

Try it out. Consider the above to be no more than springboards for your own written advocacy and feel free to share your own. The goal is accessibility, not homogeny. There is still room for creativity, compassion, and innovation. And we can all do better to improve transparency, engagement, and inclusion in the Court process.