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“Child-friendly” Judgments and Beyond: Simple Language in the Superior Courts

By: Seán Beatty BL

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Introduction

It's hard to recall the number of times I was told as a student to avoid legalese at all costs. I was advised that it only complicates reading and does little to impress an examiner. I’m sure many who read this will have had the same experience.

When we look to written judgments of the courts, no such advice seems to apply. Not only is legalese present, but usually the concepts are not presented in a particularly accessible way. It is obvious that college essays and Superior Court judgments are not in the same league (nor even, perhaps, the same sport), but it could be asked if this piece of advice should translate more readily than it does.

Of course, judgments frequently deal with technical, difficult legal issues and it may be quite impractical for them to be composed without recourse to technical, difficult language. Judgments such as those in Kerins or Gorry inevitably require more than one read. For many judgments, it takes a lawyer with all the bells and whistles of legal education and work experience to fully get to grips with them and their implications down the road.

It is unrealistic to expect judges to pore over each and every aspect of a judgment to ensure it is written in layperson's terms. However, that is not to say that plain language is not something that should not be strived for. There is no disputing the fact that there is a major difference between a Supreme Court judgment breaking new legal ground and a judgment of the High Court which applies a well-established principle. While the former type of judgment should endeavour to make itself more readable, there will be a limit to what a layperson can be expected to take away from it. Rather, it is the latter type of judgment which could, and should, be made more accessible. As will be seen below, when efforts have been made in this regard, it is usually in the context of cases concerning children, families or vulnerable adults.

Before proceeding to some examples, we might ask why the use of accessible language is so important. In my view, the matter goes to the question of access to justice. To take one area, that of children, Professor Kathryn Hollingsworth has written that “[j]udgments that are specifically written for children and in a ‘child-friendly’ manner better conform with the rule of law and children’s access to justice” (‘Child-friendly Judgments’ (2019) Law Research Briefing #5, available here). I agree. The administration of justice is an essential public function, and a key component is that the average Joe or Joanne can understand how the law affects them. That is justification enough—and maybe it is the only consideration that really matters. Complicated judgments do such individuals little favours. As discussed, there may be no helping the complexity of the law, but with an acknowledgement that it will not be appropriate or even possible in every case, we can say that a push towards more understandable judgments can only aid the overall administration of justice.

The judgment of Nakatsuru J. in the Ontario Court of Justice in R v. Armitage [2015] ONCJ 64 makes the point very well:

“[2] Before I get to this, I would like to make two short comments.  First of all, I want to say something about the style of this decision.  For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language.  I believe that this is very important for judges to do in every decision.  However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated.  This only muddies the message we are trying to say.  That message is very important when it comes to passing a sentence on an offender.  That the message is clear is even more important in the Gladue courtroom [‘a special court for people charged with a crime and who self-identify as Indigenous, Métis, First Nations, or Inuit’: source].

[3] I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand.  Their voices are heard by the judges.  And they must also know that we have heard them..."

Finally, it is worth noting that, in March 2018 the Supreme Court of Canada began to “issue plain-language ‘Case-in-Brief’ summaries of its reasons for judgment. The Court has always aimed to be transparent and accessible to the Canadian public, and that’s what this new initiative is about,’ said the Rt. Hon. Richard Wagner, Chief Justice of Canada. ‘Cases in Brief are short summaries drafted in reader-friendly language, so that anyone interested can learn about the decisions that affect their lives.’”

Irish Judgments

It appears that the judge blazing the trail in this field is Mr Justice Barrett. In the years 2020 and 2021, he delivered 16 litigant-friendly judgments. Each judgment relates to one of the three areas identified earlier and tries, in its main text, to be understandable. But it is the additional letters written by the judge to the parties that stand out.

Why Barrett J. writes these letters is clear from many of them, but as he stated in Middlekamp v. Minister for Justice and Equality [2021] IEHC 521, “I am always concerned that because applicants in visa application cases are foreign nationals, they should, if possible, be placed by me in a position where they can understand the overall direction of a judgment that has a sometimes great impact on them.” (Emphasis added). It is interesting that he takes responsibility for making a judgment accessible to the parties, rather than leaving that to their legal representatives.

Examples of the simplistic language adopted by Barrett J in some of these judgments include the following:

A v. B [2020] IEHC 480:

“1. This is a profoundly sad case in which a Circuit Court order in relation to a mother (the appellant) who presents with a drinking problem has effectively seen her denied meaningful access to her two children for well over a year…

2. The hearing of the application was a deeply trying one in which the appellant repeatedly and genuinely cried. It would be easy for the hard-hearted to say that the appellant has brought her woes upon herself through drinking; the court does not say that; after a while a dependent relationship with drink becomes one in which one is not properly oneself. More than once the appellant indicated to the court that the person depicted in the pleadings is not the real her, that she is a good person who has always worked hard until, latterly, her life has ‘nosedived’. The court accepts that the person in the pleadings may well not be the appellant as she once was; drink changes a person. Regrettably, however, the facts recounted by the appellant’s ex-husband (the respondent) and the two children that he and the appellant had together ring true, the court has to act on what has historically occurred over a prolonged timeframe, and some of what has occurred has been most unpleasant for the respondent and, more particularly, the two children.”

In M v. S [2020] IEHC 562 Barrett J. adopted an even more novel approach. At paragraph 1 he states that:

“Highlighted, underlined terms are defined on the last page of this judgment which, in order better to ensure the privacy of the parties, is being provided only to the parties.”

This was further explained in the letter addressed to the parties. While that page is not publicly available, we can still read the letter the Court wrote to the parties. This also took a new approach of identifying “in Bold, capitalised text below what orders have been sought by the applicant and, in plain text, what orders I intend to make”.

Letters to the parties can be found in many judgments such as Q v. P [2020] IEHC 524, X v. Y [2020] IEHC 502 and R v. W [2020] IEHC 580. These letters are written in an empathetic style, with references to "Mum" and "Dad" and parties addressed in simple and direct terms. In A v. B [2020] IEHC 480, a letter entitled “To the Appellant/Respondent: What Does This Judgment Mean for You?” is appended to the judgment. It states as follows:

Dear Appellant/Respondent,

I have dealt in the preceding pages of my judgment with the various issues presenting in this appeal. I am conscious that much of what I have written might seem like legal jargon. So, in this section, I identify briefly some key elements of the judgment and what it means for each of you. This summary is not a substitute for what is stated in the preceding pages. It is meant merely to help you understand some key elements of what I have stated above.

For the Appellant

I intend to confirm points 1-4 and 6-7 of the Circuit Court order. My order will relate only to your younger child. Also, I will add a couple of extra elements to the original order so as to give express effect to what the psychotherapist has recommended as being in the best interests of your younger child. So, if you give certain binding undertakings to the High Court (that you will not ring your younger daughter, that you will stay away from the respondent, his wife and the two children, and that you will stay away from your younger daughter’s school), I will order that:

  • you be given the opportunity to send cards, short notes and small gifts to your younger child at Christmas and birthdays, to be addressed to your former husband and to be kept in safe keeping by him until your younger child wishes to receive them (if she does ever wish to receive them); and
  • you be allowed to send a general text once a week to your younger child, for so long as she wishes that. Those texts must be general in nature and should not contain any questions, requests or otherwise pressure your younger child. No texts should be sent if you are under the influence of alcohol, and your former husband may periodically cast an eye over whatever texts you do send. If your younger child ever asks that the weekly texts stop, you must stop sending them unless and until your younger child indicates that they might resume.

Finally, though I make no order in this regard, I would, most respectfully, suggest that you give the keenest consideration to seeking further treatment, it may be necessary to undertake residential treatment, for your relationship with alcohol.

For the Respondent

Please read the section just above concerning the implications of this judgment for your former wife. Please note that:

  • if any cards, short notes or small gifts are sent by your former wife and addressed to you but intended for your younger child, whether they be sent at Christmastime or to mark your youngest child’s birthday, you should keep them in a safe place and give them to your daughter, should she ever ask for them;
  • the appellant is entitled to see medical and school reports pertaining to your younger child and it would be appropriate to send copies of these to the appellant without her having to ask you for them;
  • the limited form of access that I am ordering is being ordered on the strength of what the psychotherapist (an expert professional who has your younger child’s mental health at heart) considers to be in that child’s best interests. So it is in your youngest child’s best interests (now and longer term) that you seek, in good faith, to facilitate the limited form of access between your former wife and your younger child that the psychotherapist has recommended and which I intend to order.

Yours sincerely,

Max Barrett (Judge)”

These appear to be the first occasions on which such efforts have been made by the Superior Courts in Ireland, and the effort is laudable.

UK Judgments

While some elements of Barrett J.’s judgments are admirably accessible to lay persons, it must be admitted that they are, ultimately, only elements. Efforts at making judgments in the UK more accessible have been taking place for some time. For example, the United Kingdom Supreme Court publishes short summaries of all its judgments. Its Irish counterpart does not imitate that practice, save for a select number of summaries contained in the relatively new Supreme Court Annual Report.

But beyond summaries, what of the judgments themselves? It is a praiseworthy feature of the UK jurisprudence that a number of judges have taken an interest in this area. The most high-profile case is the “Dear Sam” judgment of Jackson J., which was written in the form of a pseudonymous letter addressed to a 14-year-old boy, Sam ([2017] EWFC 48). The letter is fantastically written and is well worth reading in full. Extracts from this judgment include:

“Dear Sam,

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.

When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.

The information I have comes from a variety of sources. There are the papers from the old proceedings years ago. There are more papers from the proceedings this year, especially your own statements, your mum and Paul's statements, your dad's statements, and the report of Gemma, the Cafcass officer. Then there is the evidence each of you gave at court. I have taken all this into account.

When I was appointed as a judge, I took the oath that every judge takes to apply the law in a way that is fair to everybody. Some people will say that this or that decision isn't fair, but that's usually their way of saying that they don't like the decision. People who like decisions don't usually say they are unfair. Here, your father loudly says that Cafcass is biased against fathers and during the hearing it became clear that he doesn't have much confidence in me either. He is entitled to his view, but I can tell you that I found no sign of bias on Gemma's part; on the contrary, I found her someone who had thought very carefully about you and your situation and used her professional experience of many, many family cases to reach an honest view of what would be for the best…

I don't think you yet realise the influence that your father has over you. It leads you to side with him and praise him whenever you can. You don't do the same for your mother. Why is that? Is it because you sense that he needs it and she doesn't? Also, I may be wrong, but when you gave your evidence I didn't get the feeling that you actually see your future in Scandinavia at all. Instead, what I saw was you doing your duty by your dad while trying not to be too unfair to your mum. But you still felt you had to boost your dad wherever you could. That's how subtle and not-so-subtle pressure works. So I respect your views, but I don't take them at face value because I think they are significantly formed by your loyalty to your father…

It won't surprise you to hear that your dad told me that any outcome like this would be totally unacceptable to him and to you: can I suggest that you do your own thinking and don't let his views drown out yours?…

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.

Lastly, I wanted to tell you that your dad and I enjoyed finding out that we both love the film My Cousin Vinny, even if it might be for different reasons. He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.

Kind regards

Mr Justice Peter Jackson.”

Another example can be found in Jackson J.’s judgment in Lancashire County Council v. A and Ors. [2016] EWFC 9:

“1. This judgment is as short as possible so that the mother and the older children can follow it...

5. Unfortunately, there have been some serious problems, ending up with the children being taken away and Mr A being arrested and kept in prison...

7. Another thing is that children are not taken away from their parents simply because the parents have lied about something. Even if they do tell lies they can still be good enough parents.

8. People can tell lies about some things and still tell the truth about other things.

9. Also, children are not taken away because parents are rude or difficult or because they have strange views, even if those views offend people. The only reason to take children away is because they need protecting from harm.”

We also have the judgment of HHJ Lynch in Wakefield MDC v. A mother (1) and Ors. [2018] EWFC B82:

“1. These proceedings are about a little boy, X, who is under one

2. Y and Z do not agree with the plans for X, but they have made the very brave decision to leave it to me to decide. I am going to try to write this judgment in a way that will make sense to them, given they have some problems with understanding, so it may not sound as legal as some judgments...

5. In the court cases about the older children, people looked at Y and Z to see what kind of people they were inside, and that included a psychologist and a neuropsychologist who looked particularly at Y. The reports about Y said she could not look after a baby or child without an awful lot of support and training. It was said that any work with her would need people to be involved for years.”

Similarly, in A Council v. ‘Jack’s’ Mother (M) and Ors. [2018] EWFC B12, Reed J. used wonderful paragraph headings throughout, such as “What the case is about”, ”Who is everybody”, “What does everyone say?”, “What I have to decide today”, and “What I think of the evidence”.

Conclusion

While Barrett J. has made real efforts with his recent judgments in this area, we can see from the UK that language in judgments can reach a very high level of simplicity—to the point where genuine empathy and care come across from the pages of the judgment. That, of course, is not a necessity but it is true to say that such an impression is impossible where a judgment is written solely in obtuse legalese.

Postscript

Interested readers may wish to consult the work of Professor Kathryn Hollingsworth and Professor Helen Stalford. Below is a short, seven-page paper and a much more detailed article published in the Modern Law Review:

  • “Judgments for Children” (Law Research Briefing #18, September 2020) available here.
  • ‘“This case is about you and your future”: Towards Judgments for Children’ (2020) 83(5) MLR 1030, available here.

In Ireland, Dr. Lydia Bracken, Child Law in Ireland (Clarus Press 2018), contains a section entitled “Beyond Participation: Child-friendly Judgments”.

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