Family law must carry out a delicate balancing act to both ensure the privacy of the parties (particularly where a child is involved) and uphold the principle of open justice. One of the most basic steps to achieve this balance is to anonymise the parties. Often, this results in assigning the parties letter combinations such as ‘AB’, which are difficult to remember and result in all case stylings requiring explanatory parentheses—eg ‘AB v CD (Fact Finding)’.
Another approach is to entitle This is I admit an odd usage of ‘entitle’—but it does work and has a good Anglo-Saxon feel compared to just borrowing the French titulariser. the parties, such that the mother of the child is referred to as ‘Mother’ and the father is referred to as ‘Father’. This approach has many advantages. Unlike pseudonyms or letters, the names actually have meaning and inform the reader immediately as to the relational position of the parties. They fit into a pattern lawyers know well—because in law school when studying cases and doing problems it is normal to refer to people only by their relational title (eg, ‘Victim’).
However, a recent judgment by Lieven J highlights the limits of this approach: The Mother v The Father. [2022] EWHC 3107, Fam The definite articles which work so well within the case look awkward and stilted when put into a citation. It does not help that ‘The Father’ has a religious ring to it. Even worse, the use of the relational titles here makes the style as indistinguishable as the generic ‘AB v CD’ is. If all cases involving mothers and fathers were so styled, the result would be that all styles became useless, and thus could be completely ignored in favour of citations. This is, in practice, how many civil law countries cite cases.
However, stylings are useful. Human memory associates significance with people, places, images, not abstract numbers. This is why, since antiquity, the best technique of serial memorising has been to associate, say, abstract digits with real places; Cicero called this the ‘method of loci’. Styles let us distinguish cases, let us learn them, let us add them to our head so that we may draw on them for discerning the evolving fabric of the common law. Authorities can persuade, or inspire contrary argument, or provide useful guidance, or provide a template of what not to do, but they can do absolutely nothing if they are simply forgotten. Even in an era of search, when keywords can bring up any case ever decided, Well, almost any case—there are still occasional lacunæ. there is no substitute for knowing the cases, for feeling them, for having some to hand, because that instinct provides the nous to navigate the tsunami of precedents available at a click. Stylings have a purpose.
So, I present a modest proposal: pseudonyms. For each case, randomly generate (by a simple programme) names for each party, of the appropriate gender if necessary. The names need never be referred to in the judgment, but the combination of any two surnames in the stylings works to create a trick of memory to aid in indexing. For example, using an online programme, I just generated that this case could be called Hebert v Ramsey. That seems to me to be instantly far more memorable than ‘Mother v Father’. However, to avoid any confusion, it would be good practice to mark pseudonyms in case stylings, perhaps with by appending ‘ps’ (for ‘pseudoynm’) after the names: Hebert (ps) v Ramsey (ps). This balances truth and distinctiveness, and requires very little additional effort. However, this is merely a suggestion, not a solution, and as ever I invite criticism through any available channel.
© , Elijah Granet, but licensed to all under the terms of Creative Commons licence CC-BY-SA 4.0
Published in the
City of Westminster
by
GRANET PRESS
LIMITED
Something I always found fascinating is that the ‘Roe’ in Roe v Wade was a pseudonym. ‘Jane Roe’ is (or was) the name given to all pseudononymous Claimants in the American system. ‘Doe’ for Defendants.
ReplyDeleteA small issue with the generation of pseudonyms over initials is that the generated pseudonym could cause offence to those so named. I assume your generated list won’t include ‘Hitler’ among the choices, but usually innocuous surnames like Saville or Sutcliffe could raise objections, and there may be people who object to having a name assigned that implies a particular culture, to which they do not belong.
You make a very good point about a blacklist! There are also concerns about ethnicity—in that often in family cases we might be told X and Y moved to the UK from say Algeria in 2006, and so it would be odd if they had German surnames. My thought would be:
Delete—take names that are the top ~1000 surnames, which gives you good ethnic diversity but also will avoid Hitler.
—make a blacklist, being cautious (like the DVLA and numberplates)
—Remove surnames of certain public figures while they're in office—so Johnson is fine now but Sunak isn't.
—If the name is still iinappropriate (for example it happens to be the name of judge or counsel in the case, or is obviously not the surname—like Christian for a family case about Orthodox Jews) then either re-roll the random one or the judge can manually pick a pseudonym appropriate for the occasion