www.iflg.uk.com | [email protected]| +44 (0)203 178 5668 THE ROLE, BENEFITS AND CONCERNS OF DIGITAL TECHNOLOGY IN THE FAMILY JUSTICE SYSTEM Prof David Hodson OBE MICArb Digitalisation is increasing across family justice systems around the world. What are the benefits? What will be the impact on professional practice and legal representation? What are the concerns for those who may be digitally disadvantaged? How much can justice itself become digital? What can be learned from other ADR? Introduction Digital technology and the administration of justice Digital technology and the resolution of justice Digital technology and the practice of justice Digital technology and access to justice Conclusion David Hodson The International Family Law Group LLP Hudson House 8 Tavistock Street Covent Garden London WC2E 7PP iFLG, Hudson House, 8 Tavistock Street, Covent Garden, London, WC2E 7PP
THE ROLE, BENEFITS AND CONCERNS OF DIGITAL TECHNOLOGY IN THE FAMILY JUSTICE
SYSTEM
Prof David Hodson OBE MICArb
Digitalisation is increasing across family justice systems around the world. What are the benefits? What will be the impact on professional practice and legal representation? What are the concerns for those who may be digitally disadvantaged? How much can justice itself become digital? What
can be learned from other ADR?
Introduction Digital technology and the administration of justice Digital technology and the resolution of justice Digital technology and the practice of justice Digital technology and access to justice Conclusion
David HodsonThe International Family Law Group LLP
BiographyDavid Hodson OBE MICArb is a highly experienced family law dispute resolution specialist, especially involving an international element or complex assets or issues. He is an English solicitor (1978 and accredited 1996), mediator (1999), family arbitrator and Member Chartered Institute of Arbitrators (MCIArb) (2002), Deputy District Judge at The Central Family Court in London (formerly The Principal Registry of the Family Division) (1995) and Australian (NSW) solicitor and barrister (2003). With Ann Thomas, he is co-founder and Partner of The International Family Law Group LLP (iFLG).
In The Queen’s Birthday Honours List in June 2014 David was appointed an Officer of the Order of the British Empire (OBE) for “Services to International Family Law". The Legal 500 refers to him as ‘The London international family law specialist’.
David has been appointed an Honorary Professor of Law at Leicester University and a Visiting Professor at the University of Law (formerly the College of Law) giving keynote lectures and contributing to the development in the education of family law.
David is the editor and primary author of “The International Family Law Practice” (5th edition Dec 2016, Jordans), the leading definitive textbook for practitioners and academics on the international aspects of family law practice. With Ann Thomas, he is author of “When Cupids Arrow crosses National Boundaries: A Guide for international families” (3 rd edition). Both books are available via iFLG.
He is an Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Member of the English Law Society Family Law Committee, a Fellow of the International Academy of Family Lawyers, a Fellow of the Centre for Social Justice, a past trustee of Marriage Resource, a member of the Family Law Section of the Law Council of Australia and a Fellow of the Asian Institute of ADR Professionals. He is on Advisory Boards of the Law Commission. He is a member of the Lawyers Christian Fellowship. He has written extensively on family law matters and spoken at many conferences in England and abroad. In November 2011 he received the prestigious inaugural Jordans Family Law Commentator of the Year award for his outstanding contribution to commentary on family law matters, as voted by family lawyers. He is a licensed Church of England occasional preacher
David has written and spoken extensively on family law including many conferences abroad. More information and some of his papers and articles can be found at, www.davidhodson.com.
The International Family Law Group LLP is a specialist law firm, based in Covent Garden, London, looking after international and national families with an emphasis on a conciliatory and holistic approach. We are experts in financial and children’s matters relating to relationship breakdown, including forum shopping and international enforcement orders. As accredited specialists we receive instructions from foreign lawyers and act for clients of other law firms seeking our expert experience. IFLG has a specialist contract with the Legal Services Commission for child abduction work and is regularly instructed by the UK Government (Central Authority).
IFLG is passionate about making the law more accessible. Our website includes helpful information, such as podcasts, articles, iGuides and website based applications in a simple question and answer
format to guide clients in the right direction towards resolutions. We also have a 24hr emergency contact arrangements. For more information on iFLG go to our website at www.iflg.uk.com
Introduction
Family court systems are becoming digitalised in many countries. This process started in the mid-90s in places such as Singapore1 and West Coast USA. It has accelerated in the past five years, curiously often encouraged by the public austerity cuts and the need to streamline the court process. In 2015 in England and Wales the government announced £500 million was being committed to the digitalisation of the courts, albeit a good amount in the criminal and civil courts. Subsequently the Lord Chief Justice announced radical changes to court procedures as part of a £700 million2 programme to modernise the courts3. Ironically this came at the cost of closing a number of local courts thereby giving rise to protests about accessibility to justice
This digitalisation has been online filing, online forms, online court diaries, electronic bundles and increasing accessibility of judges to electronic communications with lawyers and litigants. In England online dispute resolution (ODR) is being piloted in some civil courts.
How will and should family law respond?
It has to respond positively, constructively and enthusiastically. IT is now pervasive in our world4.
There are four distinct elements:
the administration of justice, the resolution of justice, the practice of justice and the access to justice.
Each is considered separately but the fourth is crucial.
Many parties before the family courts are poor and disadvantaged and do not have access to the Internet and digital services, thereby risking access to justice. Can Internet facilities in public places such as libraries or town halls provide sufficient substitutes especially if there is digital ignorance? The bright new world of digital family justice cannot lead to more inaccessibility to justice.
Whilst some codified systems of arithmetic division of marital property might be susceptible to digital resolution, common law jurisdictions with a highly discretionary element and a greater reference to fairness considerations are not easily adaptable to online dispute resolution. Where children are involved, there are often nuanced issues to consider alongside the need to take account of their best interests. Is it the case, as some have argued, that digital family courts are impossible for family law or is this the roar (or whimper) of the dying dinosaur?
1 In the mid-1990s, Singapore set up perhaps the first electronic case filing system . This was to remove the masses of paper involved in the litigation process and which has clogged up the administration of justice in many countries
2 Albeit with classic government accounting this included the £500 million previously announced!
3 See https://www.judiciary.gov.uk/publications/civil-courts-structure-review-final-report/
4 There are said to be 500 million tweets each day, 1 billion websites, 4.5 billion active webpages, 1.2 trillion Google searches each year, 1.9 billion Facebook users and 2.5 million emails sent every second. About 47% of the world's population (81% in developed world) has Internet access with 3.5 billion users in 2017 up from 1 billion in 2005 and 2 billion in 2010.
Artificial Intelligence (AI) is already used extensively in some professions and industries5. It is a feature in some law practices. It will inevitably feature in family law. How can family law most benefit from artificial intelligence? Will the family court judge of the future have Watson as a judicial companion or be replaced by Watson?
The challenge for lawyers is not to automate inefficient current working practices, even court procedures or indeed possibly even laws. The challenge is to innovate working practices and justice systems in ways which were previously impossible. Some innovations will allow the new digital and the current working practices to continue alongside each other. This will give false comfort. The former will soon replace the latter. With increasing standardisation of forms and documents, their population will not require lawyers of significant expertise, or charging rates. It is inevitable that there will be more fixed fee and unbundled arrangements. The digital changes will only encourage what has been existing trends and movements in provision of legal services, sometimes brought about by the very high legal fees of lawyers6.
Lawyers need to look at other services such as online banking. Only 10 years or so ago, there was a retail bank on every High Street which received cheques with bank managers handing out individualised advice. They have very largely gone. They have been replaced with online banking and centralised services. Many high street, even city centre, law firms are under similar threat
Sometimes with arcane language, 18th-century wigs and formal, almost-Masonic rituals, the practices of family courts don’t appear to have evolved much since Horace Rumpole was winning the Penge Bungalow Murder case on oral cross-examination at the Old Bailey. But would his successor now be so successful from his or her tablet?
Digital technology and the administration of justice
Although there had been attempts at some online process in the English family justice system, the primary manifestation was as late as early 2017 with a pilot project in the East Midlands of England, based in Nottingham7. It was initially a very limited pilot to test that the service met the needs of its users rather than a full digital rollout8. There have been too many bad experiences of large government IT projects that spent millions of pounds over a number of years and were ultimately a failure. The staged approach being taken in England and Wales9 will help mitigate against that risk and is currently progressing fast and well. On 8 May 2018 divorce online became available to the public. Between January and April 2018 whilst in pilot stage, there were over 1000 online divorces presented. On 31 July 2018, it became available for a beta stage project for four law firms including
5 Albeit is a much misunderstood, almost abused term. It is being brought down to fairly minor applications whereas properly artificial intelligence is massive data crunching and intelligently responding as a consequence
6 Although it has to be said this is not necessarily, at least not always, because of the anecdotal sheer greed. The costs of running any business in metropolitan city centres, and therefore close to courts and other specialists and accessibility for clients, has increased significantly in the last decade. Regulatory burdens and insurance costs have risen hugely. The justice system has itself added the burdens of particular forms of bundles and other procedural demands which in turn have added to the costs. As justice systems have become more sophisticated, the costs of operating these systems by lawyers have increased correspondingly.
7 Other countries, either coming later in the creation of advanced justice systems or in smaller jurisdictions, have had the ability to make faster progress and are ahead of the UK
8 It provided that digital forms still had to be printed off and physically filed.
9 They are working closely with both Canada (British Columbia) and the Republic of Ireland which are developing in similar ways at this time
the International Family Law Group which was the first English law firm to issue a petition online on 6 August 2018. It has written about the key benefits of the experience10. It will be rolled out to the profession in early 2019. It is primarily the divorce initiating document but by 2020 it is anticipated that it will be the entire divorce process coupled with the initial stages of financial claims 11. Nevertheless, the traditional divorce process has already been significantly shaped and changed by the online experience; in August 2017 a new divorce petition form was introduced and in January 2018 a new financial application form was similarly introduced, looking significantly different to the previous form and very directed to the online question-and-answer format. Other countries e.g. Australia are already well advanced
Alongside this, the English Ministry of Justice is introducing in 2018 a “shared storage system” whereby the Court Service would host documents and evidence filed electronically with the court and share on their system in the same way as they stored paper version of files. Initially it will be in public law cases with local authorities able to access through unique login. It is anticipated this will be extended to other family law cases and then to lawyer practitioners.
The aim is to remove some of the bureaucracy from often stressful and lengthy proceedings and simplify cumbersome administrative processes.
Justice systems are now experiencing the challenges faced by law firms in the 1990s and early part of the last decade namely the marrying together of digital technology and client requirements
After the issue of the first originating document, family justice systems around the world often have a huge number of various court forms for various circumstances and applications. This will have to change. It cannot continue in a digital environment. There has to be standardisation with self populating boxes and drop-down menus and a shorter process of completing the application. The same must also apply to court orders. In England, as elsewhere around the world, the Family Court Standardisation Programme has produced a series of court orders to be used in all circumstances, unless particularly exceptional12, thereby producing a high standard of drafting, comprehensiveness and ability to be used digitally by both courts, practitioners and litigants.
Sir James Munby, President of the English Family Division, said on 30 November 201713 that inordinate amounts of time and money are spent, wasted, in the process of drafting orders that could and therefore should be standardised. He said this would mean standard orders could be produced by the press of a button and obviate the need for drafts from counsel and solicitors scribbled out in a court corridor. It would assist greatly in reducing the time judges and court staff spend approving and completing orders. The existence of a body of standardised and judicially approved forms of order will go a long way to assisting judges and others faced with the increasing number of litigants in person who cannot be expected to draft their own orders. He was very keen that litigants in person should have the court order in their hands before they leave the courtroom.
10 https://www.iflg.uk.com//sites/default/files/issued_petition_.pdf and https://www.iflg.uk.com/blog/days-exclusively-paper-based-family-lawyer-could-be-numbered-international-family-law-group
11 Under English law, financial claims are ancillary to the divorce process and not freestanding. There are only modest claims arising from cohabitation, de facto relationships and not worth initial digital work. Claims arising from a civil partnership are treated the same as marriage. Children claims will follow digital progress on financial claims and are freestanding and less forms and timetable driven.
12 Technically the forms are not binding nor mandatory and can be varied by the circumstances of the case and only represent a starting point. In reality good justification for varying will often need to be given to the court
13 Practice Guidance: Standard Financial and Enforcement Orders (2018) Fam Law 89
One anticipated benefit is that if the administration of most family court cases is dealt with digitally, then any particularly complex issues arising e.g. in listings or the forms being used, can have the available personal assistance from court administration staff. By analogy, many would no longer contemplate going back from digital online banking to using actual bank branches and meeting bank staff for day-to-day banking. But just occasionally, exceptionally, there is the need to talk to a financial adviser at a bank and at that time the access is needed.
Another benefit of standardised digital court orders is the creation of consistency across the country. Too often experience of lawyers is of different forms in different courts with different practices arising from those different forms. Digital family justice standardisation should create a more uniform practice, invariably improving concepts of justice and fairness within a country
One major area for digital progress is bundles and court documents. See the footnote above regarding the steps taken by Singapore about 20 years ago. Although an expense, it’s not the printing which is often the issue for digital progress by justice systems. It is not their size as some countries have limited the extent of bundles14 so that they are more manageable and also a size for ease of digital transmission. The primary issue for many countries is the movement of bundles between court administration centres and court buildings, the filing and storage and then subsequent destruction.
With administration of many justice systems increasingly centralised and only distributed to more localised court rooms when there are hearings, the transportation of bundles, on time and complete, is an administrative expense15.
The answer is digital bundles. Paperless, transportable and able to be read and used by all. Software has been developed to make them easier for judicial use. It needs very good search facilities and speed of access to particular pages. With often the need to compare documents and statements, two screens may be needed. Where the bundle is via an intranet within the court, there will still be the need for the judge to have his or her own bundle to make individual markings. There will still be the requirement for some documents to be in hard form e.g. when originals are being inspected. But digital bundles, coupled with digital filing, answers many of the present issues of overwhelming paperwork for justice systems.
Within the London family courts, there has been a major move to digitalisation. The West London Family Court and the Central Family Court are now fully digitalised. They have created over 1000 digital cases with an estimated saving of about £850,000 compared to the manual paper process. Other jurisdictions have fully paperless court files. This has meant a huge adjustment for lawyers and judges but is inevitable in all jurisdictions sooner or later
There is also an awareness of the impact of difficulties with the number of hearings. An average family case can have between three and five hearings, sometimes requiring up to 5 copies of the bundle if third parties such as local authorities are involved. Mistakes in paper-based collation, indexing and copying are easy to make and time-consuming to remedy. Putting documents in the wrong section or the wrong order or the wrong place can have a serious impact on the outcome.
14 In England bundles cannot be more than 350 pages unless court permission.
15 One partial resolution in England is the requirement that the bundles for witnesses must be brought to court by the applicants lawyers. Also invariably in England, the judges bundle and the witness bundle must be taken back once the hearing itself is over and judgement given, to reduce the paperwork being filed.
Some cases at court depend upon work on a complex spreadsheet of overall finances. In these cases, progress is often made by dealing at court with individual disputed items e.g. deciding whether they are marital or non-marital or if held by one of the parties or by a third party. There is considerable merit in having a spreadsheet through an intranet, or otherwise shared at court, so that everyone in court is working from the same document. This can be populated and updated as the case progresses. This in turn leads to greater transparency for the parties. In too many cases the parties themselves have got lost in the density of figure work. Document display systems ensure everyone at a hearing is following the same document, perhaps even working on the same document, and having pages simultaneously turned, not least so that everyone can keep up and be involved.
Furthermore, judicial taking notes on a laptop or computer is obviously far more sensible than handwritten notes, especially as it can be then distilled into the judgement. Computer assisted transcription services convert oral content into text almost immediately for the judges and advocates.
Giving evidence is particularly sensitive in children and domestic violence cases. In this, family courts can learn from experience in the criminal courts where this arises more often. Pilot projects in England have allowed victims and witnesses to prerecord their cross examination and avoid the trauma of a live hearing. In other instances, evidence has been given from another location, and thereby still amenable to live cross examination. Initial findings are that victims are said to have felt less pressure in giving their account and witnesses were better able to recall events. The then English Justice Secretary, Elizabeth Truss, said16 children in particular would benefit from being able to give cross-examination evidence outside court in a less intimidating environment. She said: “We want a justice system that works for everyone. That means creating a system that is just, efficient and simple. We have the tools and the technology to cut unnecessary paperwork, to deliver swifter justice and to make the experience more straightforward. Most importantly these reforms will allow us to better protect victims and witnesses who can find the experience of reliving a traumatic event in court incredibly stressful.”
As explored elsewhere in this paper, it must be questionable how much the administration of justice now needs to be focused on actual in-court hearings. First, there is and will be less need for actual court hearings, with better use of online dispute resolution or Skype conferencing. Secondly, the significant majority of family law cases settle without a final court hearing including extensive use of ADR and lawyer negotiation. So funds should be placed more towards the administration and process in the family justice system of helping resolution short of a final court hearing. It is unfair if a disproportionate amount of available funds are put towards the relatively few and high conflict and/or big-money cases which do require (or are indulged with) an in-court hearing.
In February 2016, Sir James Munby, President of the English Family Division, said17 that some proceedings will be conducted almost entirely online, even down to and including the final hearing. The judge, who will not need to be in a courtroom, will interact electronically with the parties and, if they have them, their legal representatives. The heaviest cases will of course continue to require the traditional gathering of everyone together in a courtroom, though probably only for the final hearing and any really significant interim hearings. The other hearings in such cases will increasingly be conducted over what we quaintly continue to call video links. The visible consequence all this will be court buildings rather different in design and function from what we are
accustomed to and less frequently visited by the digitally communicating judges and practitioners of the future than they are at present.
In answer to assertions that there will be a lesser form of justice through digital means outside of real court rooms, many judges and lawyers are now far more familiar and comfortable in dealing online, as they do socially and professionally. An online adjudication will be expected by many parties. An in-court hearing will be just quaint.
Within legal services there will be many changes. It’s questionable if email will still be the predominant means of communication and whether the traditional word document will still be dominant. Machine learning is making dramatic headway. At the moment it is mostly applications for machine learning for large contracts and databases. This will inevitably broaden across all legal work.
For lawyers in the future, travel to and appearing in an actual court room will become an infrequent experience. Forensic advocacy skills will be less required, and concentrated in a smaller corps of advocates at the actual in-court hearings. More lawyers will instead be working on paper submissions and appearing before judges through visual Skype hearings18. These will become the normal court hearings of the future with digital technology. Online dispute resolution, ODR, will be the dispute resolution of choice of most lawyers and many clients19. This must always be balanced with the concerns for open justice, which is far more problematical with greater digital justice and see remarks by Sir Ernest Ryder20 at the Max Planck Institute, Luxembourg on 1 February 2018
If this experience is true in dealings with national clients, it will be even more so with international clients as this firm has continually found, and been challenged to put in place systems of working which international clients expect
Digital technology and the resolution of justice
The resolution of justice is the classic judicial adjudicative role. Deciding a dispute of fact, ruling on disputed law or procedure, applying the law and procedure to particular circumstances, applying fairness discretion, judging the best interests of a child. How could so-called disruptive digital technology possibly disrupt the resolution of justice? It has to be a judge in a court room with cross-examination evidence and oral submissions and with a following judgement. Or does it?
Curiously, the strongest advocates of using digital technology in the resolution of justice are the judges themselves. They can see where there can be benefits, time savings, costs savings and more efficiency as well as remaining a fair process of justice. Many are very digitally aware and savvy. Of course there will always be some cases which require the full judicial resolution through court based hearings. But many don’t.
Judges have often had to fight against systems in court rooms which are antiquated, technologically historic and with masses of inefficiencies, errors, delays and potential injustice. Many court users,
18 Curiously at a time when there is much reference to transparency of justice, it will become far more difficult if hearings are not in a physical court building and instead conducted between judge and relevant parties through a combined Skype conference arrangement. This might compel certain high-profile hearings to remain in the court room setting for public access. But most first instance single judge hearings can be dealt with otherwise.
19 Those clients who speak about wanting their day in court are often not those who need a day in court, even if they are those who can afford to pay for it. Every family justice system must ask whether it is structuring itself in the future for those parties who want a day in court or those who need a day in court.
lay and lawyer, would be surprised at how much intervention occurs by judges to make sure the particular hearing goes smoothly and efficiently. But it should not be thus.
Divorce is now in most countries close to being an administrative process. Even with a wholly or part based fault system21, judicial input is invariably fairly minimal. Defended divorces where possible in law in England will still require an in court based resolution, but they are very rare. In reality many countries are moving towards laws which prevent these types of hearings. This may be harsh for some but is the economic reality of family justice systems. In any event, the pilot online digital process has already sped up the divorce process by very few procedural errors possible by the parties in a digital form22
It is the realm of finance resolution where there is the greatest potential for improvement of resolution through digital interventions. For many civil law jurisdictions, there is relatively little in court adjudications regarding the marital capital. It is only issues of any form of equitable redistribution and maintenance.
In the common-law process, with significant discretion and flexibility, there is far greater difficulty in systematisation. This in turn makes it more difficult to introduce digital technologies in the actual resolution process. Difficult but not impossible.
For many years, some of us have been arguing for a form of equation, formula or at least flowchart for the resolution of financial matters on divorce in a discretionary system. England is in a far better position now than at any time over the past couple of decades with its categorisation of assets and equality of sharing subject to needs23. But still there is the issue of needs and when it is appropriate to depart from equal sharing.
Artificial intelligence has had far less application here than in many other areas of law. But it can (or could) answer the continued protest of common lawyers that the discretionary fairness exercise of the courts can never be distilled in any digital way. This protest has nullified and stultified opportunities to make good digital progress. But the Law Commission24 recommended greater use of formula for resolving these matters25. Without creating unnecessarily high hopes, artificial intelligence is able to number crunch and fact crunch together in reported decisions and settled cases the wide variety of factual situations occurring in family law cases to produce either the outcome as will have occurred across a huge variety of cases or at least produce the starting point.
The problem is not the ability of artificial intelligence. It is the data. With restricted funding over recent years, most family justice systems have not had the ability to carry out appropriate data analysis. The huge task ahead would be categorising the facts of reported decisions at all levels of family courts, including cases which have settled without hearings in order to avoid undue
21 England has a mixed fault based and non-fault-based divorce law with the vast majority using the fault -based reasons in order that the divorce proceedings can be commenced more quickly than waiting a period of separation
22 The online divorce form simply does not permit of the significant number of procedural and content errors in the divorce petition which had previously caused a good percentage to be rejected, sent back with delays before subsequently resubmission and issuing.
23 The general position in England is that all assets acquired during the marriage including premarital cohabitation are shared equally unless required for fairness reasons to be unequal sharing. Fairness reasons will almost always be needs of one spouse more than the other. All other assets i.e. non-marital acquired are not shared at all unless again required for fairness reasons.
24 February 2015: Matrimonial Property, Needs and Agreements”.
25 “We recommend that Government support the formation of a working group, to be convened once suitable empirical data become available, to work on the possible development of a formula to generate ranges of outcomes for spousal support.” Para 3.159
concentration on the high conflict and/or big money cases. It’s only once this task has been satisfactorily undertaken could the artificial intelligence process go ahead. For many involved in pressing forward digital technology and hoping to see a better system, there is real dread that the process will not go forward because of the lack of data rather than the lack of technology or initiatives or the enthusiasm of practitioners.
If this AI investigation and analysis were possible, then either the law could be changed or remodelled to reflect what happens in practice or the knowledge of what is likely to occur26. The operation in the shadow of the law will encourage more settlements and more use of formulaic based approaches.
Unfortunately the use of technology in getting to a resolution has not had a good history in English family law because of the Child Support Agency. Launched as long ago as 1993, it has had constant relaunches, new incarnations27, marketing drives and production of ancillary services. But in essence the formula has been flawed from the outset and never fully accepted by the profession and other advisers. It has been badly funded with inadequate powers in those cases which are hard to enforce. The arrears have been staggeringly high. It has probably single-handedly put back commitment to digital means of resolving family cases28. The easy response of the English Luddite, seeing the new machinery of this digital legal revolution in family justice, has been to refer to the CSA.
But this historic failure, which started badly with a digital disconnect between government tax records and child maintenance calculations and has not really much improved, must not stand in the way of moving to reform of the law of financial outcomes on relationship breakdown. The law must be adapted to digital processes. The law must not be so sophisticated and keen to produce a tailor-made outcome for every individual case as to make it so expensive, so complex and so hard to predict as to put off both lay parties and digital programmers. Of course IT is the servant of the law but the law must adapt to work best with IT. This is not a challenge to fairness. It is a challenge to produce an accessible justice system.
The resolution of justice will still require hearing evidence including crucial cross examination of witnesses whereby the truth is often discovered. But these can be more discreet and there is likely to be far greater reference to fact-finding hearings, in effect the taking of evidence, earlier in a case. Many courts are already moving across to paper submissions instead of the need for oral argument. Therefore the resolution of justice can take place remotely once the fact-finding from actual evidence has occurred.
In children matters, there is more reference29 to oral hearings including taking of evidence. But again the evidence stage can be separated from the adjudication of outcome stage which can then be remote and without the need for a court building and court room.
26 For example, if before commencement of proceedings a party was aware through the use of AI data of a huge range of national cases and also perhaps international cases that on identical, or at least very similar, facts there was a particular outcome in at least 85% of those cases then for most sensible people this would drive towards settlement and not litigation.
27 Including new names, possibly to disguise past failures! It is now the Child Maintenance Service. Different name, similar problems and shortcomings
28 although it was not helped by an experience in 2016 in which it was found that the financial disclosure form on the UK government website and as used by the English court process was fundamentally deficient in that it showed liabilities as resources. The government had to commit to re-examining very many final financial court orders which could be defective as a consequence
29 Although curiously as far as the data is concerned, the best interests test is used in most developed jurisdictions albeit with cultural and national glosses. In the realm of child abduction, the big data is far closer with the Hague Conference INCADAT scheme bringing together the child abduction decisions of the higher courts of signatory countries
The traditional resolution of justice has occurred in a court room, with a judge or some other form of judicial officer, sometimes robed, often sitting under a coat of arms, listening to oral submissions and evidence, and then giving an oral judgement. This cost of time, converted into legal costs, is massive for both the parties concerned and a justice system. Certainly there are some cases which must have some form of oral hearing. But many do not need this. Many judges are quite comfortable in deciding after written submissions and this is becoming a norm. The experience in England with arbitration in family matters is that many are resolved on paper or after a fact-finding hearing and only occasionally oral submissions. Even actually having a physical attendance is unnecessary where parties are at some distance and there are Skype facilities. It is inevitable that there will be increasingly fewer court hearings. Lawyers must expect more adjudications remotely and on paper.
In answer to the argument that justice can only be done through an oral hearing, the eBay dispute resolution system deals with 60 million disputes annually between customers and small traders30. Lawyers and justice systems are complacent if they believe clients will always insist on the old way of dispute resolution.
In England much of the funding for the digital expansion of the courts has come from the closure of court buildings. In part, this has been centralising the administration of justice. In England much of the paperwork of family cases is now dealt with at about six regional centres around the country where documents have to be sent for filing with papers then sent to local courts when a hearing is required. It’s inevitable that the greater use of digital technology will reduce the need for so many court buildings and court rooms because more resolution of cases, specifically the creation and delivery of judgements, will take place without oral hearings once fact-finding has occurred.
It may be that the resolution of justice will learn from and borrow the innovations in ADR, where private practice is able to develop more quickly and economically. One such process has been the International Family Law Arbitration Scheme31 launched September 2018 by Prof Patrick Parkinson of Sydney and David Hodson of London. The primary purpose is to overcome expensive, long and contentious cross-border forum disputes where there is a significant level of distrust because it is resolved in one of the countries, and by the judges in one of the countries, in which one of the parties wants the case to proceed. A key component is the use of an arbitrator from a country unconnected to the dispute and the parties but nevertheless using the closest connection, conventional common law forum tests to decide the most appropriate forum for the particular family.
But crucially it seeks to use IT as much as possible. The application form is online. The procedure is being put in place for it to be exchanged with the respondent whose own response is automatically forwarded to the applicant with the agreement to arbitrate thereby created. This goes to the arbitrator automatically setting up the arbitration. Digital technology will set up electronic hearings.
In a forum dispute, there is a huge amount of material which could be relevant. The creators of the Scheme have stripped out many of the pertinent facts from both leading reported decisions and the day-to-day cases their law firms have conducted and produced a questionnaire of over 200 areas of enquiry. Careful completion will not take away altogether the need of submissions and to draw out weight to be given to particular facts. But it will take the arbitrator a long way towards having the salient facts on which to base an arbitral award, equivalent to a court judgement. In the analysis of
30 It is generally perceived as an effective system which produces settlements using a process with which parties are happy and provides procedures that are intuitive i.e. both intelligible and comprehensive to the user
the future process of resolution of justice in the family system, there must be consideration of how the information, facts and evidence is delivered and submitted. In turn this should produce significant savings in judgement writing time if a judgement can be populated automatically from the information gathered digitally in the proceedings
Significant developments have been made in so-called Robo journalism32, whereby artificial intelligence takes mass data facts and produces news items for both print and electronic media. The same must surely occur with court judgements, at least as to significant parts. The intention of the Scheme is that the arbitral award can be significantly written digitally by the information created through the respective questionnaires, with appropriate selection by the arbitrator. This is a dramatically quicker process than writing a judgement afresh each time. There is no good reason why this will not also assist in the judicial writing process, perhaps leaving the judge to concentrate on just a few areas where judicial wisdom and decision-making is needed
Family law in the common law tradition invariably involves a significant element of discretion. For this reason complete replacement of the judiciary by the digital is unlikely without some strong element of presumptions or directions on elements of fact and evidence. Nevertheless it is hoped that the experience in private arbitration will inform where family court justice can go.
Under no circumstances is it suggested that all justice must become digital. Justice is human. An algorithm is an equation. Justice is not being privatised to the digital community
Digital technology and the practice of justice
One stumbling block is that family law worldwide tends to be practised in smaller law firms and chambers than those dealing with heavyweight civil litigation disputes or corporate and commercial clients. Mostly33 this means less exposure to digital advances and certainly far smaller IT budgets. Some family law clients are very digitally advanced and this has led to high expectations by them of their law firms. A good part of digital advances and innovation in law firms is client led.
The use of automation will over the years significantly change the way of working of lawyers. The present hierarchy will not continue. There will be greater need for paralegals and junior lawyers working with clients on a digital online system; some of this may be subcontracted to what is likely to become a number of self-employed lawyers working with different practices, with work outsourced. In as far as there is any discretionary and complex advisory aspect remaining in the law, there will be the need for senior, experienced and specialist advisers. It will be the non-specialist and certainly non-digital alert lawyers who will be most at risk.
Some countries are moving fast to bring their profession up to speed. In January 201834, an initiative, Future Law Innovation Programme (FLIP) was launched in Singapore with the Ministry of Law to assist law firms in innovating new ways of delivering legal services and integrating technology within their processes. The intention was to create, it said, a vibrant legal tech ecosystem for the future economy. Quite bluntly, it said it was intended to drag an entire jurisdiction into the digital age. It was said at the launch that paradoxically, Singapore is one of the worlds most
32 http://www.bbc.co.uk/news/business-42858174
33 Although certainly not entirely. Some niche family law practices around the world have been able to use the benefit of being recently created, using the most recent technology and being committed to digital forms of practice. A number use remote working by their lawyers, with only occasional meeting up, and the use of office services centrally located. Some are extensively using part-time consultants to reduce overheads.
digitally minded countries but much of the legal profession remains in the paper age. This was in part because 80% of legal practices had five lawyers or less and therefore little time or resources to adapt to new ways of working. The program would help re-engineer working practices.
In a similar way, and with identical nomenclatural, the New South Wales Law Society undertook a wholesale, fundamental review of the future for the profession with its report in 2017, Future of Law and Innovation in the Profession (flip)35. It found that increased interest by legal practices in technology was driven by the availability of increased computing power at lower costs, cloud computing, Internet connected devices and consumer behaviour. In contrast to Singapore, it found smaller firms benefited from reduced costs of technology. It found new areas of work and crucially new roles would develop as legal technology developed and matured. It acknowledged some lawyers needed encouragement and support. It acknowledged a technology gap threatened to separate corporate and wealthy Australia and disadvantaged people with legal problems. He recommended innovations of online dispute resolution.
General practice law firms, especially those outside the larger metropolitan centres, will come under increasing threat from nationwide law practices using digital technology and attracting clients who don’t necessarily seek continued close connections through meetings. There is likely to be a few brands, identified with quality representation, which will pick up much work. In England several have attempted to go down this route but none yet successfully. But it will happen. This will only be possible with significant efficiencies of work using digital technology.
It is likely that in response to digital changes, a number of law firms will operate a mixture of services. Full service will be the traditional service of full representation, on the record and giving ongoing advice, analysing developments and supporting the client. Pay as you go, also known as unbundled, services is for the client who wants occasional assistance on particular issues or particular stages of a case, but otherwise undertaking the case themselves. Fixed-price services are more often individual pieces of work e.g. a marital agreement, preparation of financial disclosure, reviewing a court form and similar. There will be a few firms which only offer full service, confined to the bigger money cases where it is affordable. Some firms will only offer fixed price or pay-as-you-go services. Most will offer a range. Specialist advocates, whether in-house or at the bar, are likely to continue and be less affected than solicitors because their services will be bought in whether as a full-service model, or part of a fixed fee service incorporated within the fees of the law firm. The move from only full-service work will undoubtedly have an impact on the finances of future law practices.
By making it easier, quicker, more user-friendly and cheaper to litigate through an online court process, the justice system will increase the number of litigants in person who will need unbundled legal advice at key points in the proceedings. It will very probably mean less clients instructing a law firm continuously throughout a case. This is irrespective of the fact that the cost of legal services are becoming increasingly out of reach of many lower and middle wealth private paying clients. Law firms will have more uncertainty about continuous flow of work from existing cases as a good number of clients will have unbundled services and use online services for some of the time. In turn this will have consequences for the future of the need for both the volume of lawyers and the particular qualification of lawyers.
It is the continued experience that the face-to-face process can be one of the best means for reaching a resolution. This can be roundtable meetings but is often in mediation. With the
significant increase in international families, many mediators now operate Skype-based mediation with the two parties being geographically separate to the mediator. This requires a very different skill set of the mediator from the traditional therapeutic model from which family mediation came. In the civil arena, there has been much progress with e-mediation and e-negotiation. Sadly, the family mediation profession in some countries has given the impression of being unduly precious with sacrosanct working practices. Significant changes must occur for mediation to play its proper and necessary role in this digital process. New skills, new working practices, new boundaries and new training is all needed. Very little work has thus far occurred.
Some lawyers will be resistant because of perceived impact on their professional practice and livelihood. This has been true throughout history. Assistance of experience may come from the Netherlands. In 2007 the Dutch government launched a platform called Rechwijzer36, Roadway to Justice, for divorcing and separating couples. It handled 700 divorces a year, admittedly not many in the context of some jurisdictions. At first Dutch lawyers were wary and feared a loss of billable hours but now many view the online platform is an efficient way to process simpler cases leaving lawyers to focus their expertise on more complicated matters. Here is a future and why there will always be a requirement for specialists. An English language version was available
It might also get rid of the heinous tyranny of the billable hours. This is much hated by clients but also does nothing for fast, specialist, creative and experienced lawyers. This is a much needed change in working practices which must surely arrive with greater use of digital technology
The challenge is not just to lawyers but all working in the family justice system. In 2007 the UK government service, CAFCASS, which undertakes reports in children’s cases and is the voice of the child for many court hearings, was classified as an “inadequate” service. It undertook root and branch reform of the way the service was delivered. This led to what was described as a fully flexible and truly paperless operation, being categorised as an outstanding service. This included37
Doing away with multiple, unconnected ways of tracking and reporting on cases and moving to a single case management system;
Making remote and mobile working universally available; Introducing Skype and video conferencing; creating interactive digital tools for children and young people so staff could open these on
their tablets and use them during sessions with service users; and Introducing a single electronic postroom to scan incoming case documents straight to the
social workers, and a single central call centre to manage external calls."
With the anxious challenge of the so-called disruptive technologies, in as far as they disrupt existing ways of working, there is however no wholesale threat in the short term. But at the end of that short-term, perhaps the end of 2020 or a couple of years thereafter, it will become normal across the profession for law firms and lawyer-based services to convert their processes to digital-based products and services. Some of these services will be only within the law firm but many will be open and available for use with exchanging information and documents directly with clients. Lawyers will
36 It allowed individuals to learn about their legal options whilst receiving support for an interest-based dialogue between the people involved. It provides mediation, adjudication and a neutral review of all agreements. Couples paid €100, followed by a question-and-answer process. It used algorithms to find points of agreements and then proposes solutions. There were tools to calculate child support and software for drafting agreements. See http://www.hiil.org/project/rechtwijzer. Sadly it has not been progressed further but other countries are using its foundation
find that many of their clients, particularly but not only in the younger generation, will feel far more comfortable with this form of service. For lawyers expecting a professional career as it was when they were a vacation visitor during university years, or worse as their parents or grandparents if keeping it within the family, there will be a major shock. For lawyers seeking new opportunities and keen to innovate yet still use legal skills and knowledge for the benefit of clients there will be exciting advances and probably a far better career. For some lawyers nearing the end of their career, there will be an excuse for early retirement. For others at that stage, there is huge frustration at not being able to work longer with these exciting times!
Digital technology and access to justice
Family justice systems around the world are grappling with transparency of the family courts; the perennial balance between openness of justice and sensitivity of personal family matters especially where children are involved. In 2016, China embarked on a very bold project of live feeds from all courts across China38. This use of digital technology is an easy way to open up courts completely.
But digitally watching what is happening in the courts around the country is very different from being a party to the proceedings. How can justice systems make sure there is full access to justice in the digital justice systems?
In September 201639, the English Ministry of Justice undertook a consultation on assistance on digital use in the courts. Its response in February 201740 said:
70. We have considered all the consultation responses in full, and will use them to inform the development of our assisted digital solution. Where HMCTS services have moved online, we will ensure that support is in place for people who have trouble with using technology, to enable users to interact with HMCTS in a meaningful and effective manner. In particular, we will ensure that our assisted digital support takes into account the needs of those who are elderly or have disabilities, those with poor literacy or English skills, and those who lack access to technology because of cost or geography. We will carry out extensive piloting, user research and testing across these groups and many others, and will continue to improve provision on an iterative basis.
71. We will work with third party providers to provide a national network of accessible, quality assured assistance. Telephone and webchat services will also be available and clearly signposted for those who already have access to IT but require extra support, and paper channels will be maintained for those who need them, as necessary.
72. As well as providing assisted digital support, HMCTS will make sure that its online services are easy for users to understand and navigate. HMCTS is researching the expected users for each service to identify their needs, and will test each service with these groups. The findings from research and testing will be fed back into the service design process, resulting in a higher level of accessibility. As a result our services will be more convenient, quicker and tailored to the needs of our users. Inclusive service
design, incorporating the needs of the people who use these services, will benefit all users of HMCTS services.
A response is that government is bound to say something like this. It knows that digital technology is probably its only saviour in coping with the massive demands on criminal, civil and family justice. The technology is there. The net savings are obviously there. The conservatism of legal practitioners can be overcome. Laws can be adapted. Procedures can definitely be adapted and will be. The obstacle in the headlong rush is digital access to justice.
Sadly, those most in need of access to the family justice system are invariably those with least digital access. This makes it so fundamental that digital access to justice must be always at the forefront. It should not be allowed to slow down the process. But the process must go hand-in-hand with making sure there is proper access.
Sadly, this is also linked with significant cutbacks in many countries to facilities in town halls or other community centres, public libraries, community advice centres and similar where digital access could be available. As court administration is increasingly centralised, there is in fact an even greater need now for localised court drop-in centres where there can be access to computers, with appropriate personal assistance, to ensure there is proper opportunity to use these facilities. Without this, there is the real danger and risk that a digital justice system will leave behind those who most need the justice.
It would be a gross mistake to assume technology can fill access to justice gaps without factoring in not only technological access but also technological literacy of users.
This is not just an issue of those without any Internet connection through poverty or simple inability to grasp these matters. Internet connection is notoriously slow in rural areas41 where there is also greater distance to court centres and access to public services.
Another feature is that ability to use digital court processes including information can be impaired by emotional distress42. At a time in life when it is important to grasp the digital aspects of the family law process, which for some will be challenging in any event, they are emotionally not well placed to cope43. Family law deals with individuals at one of their most stressed times in their lives; for themselves, their relationships, their children, their money and their futures. This is a very distinctive element in the digital technology in family justice. It must be brought into account. Where solicitors are instructed, they are used to coping with the client’s emotional distress and, through it, obtaining appropriate instructions to progress a matter. It will be much harder when there are more acting in person through the digital platforms and who are generally unable emotionally to cope with what is going on, let alone the legal elements connected to that family dispute and now the digital elements.
Sadly as well, England and many other countries have experienced the most incredible harsh cutbacks in family law legal aid or other forms of public assistance for representation in proceedings. The concentration on availability only if there has been domestic violence has not helped. Access to justice is not just needed for victims of domestic violence, even if then applying in respect of
41 Currently 42% of those living in rural areas in England are unlikely to receive broadband speeds greater than 2 Mbpa, the minimum target, with 30% having less than 1 Mbps. There are likely to be other regional variations. The north-east of England is the region with the lowest Internet access per household at 59% and the region with the highest percentage of deprived rural output areas.
42 Canadian study by McFarlane, 2013
43 They may also have lost access to the family computer or may not have safe confidential access, and in any event may not have safe or reliable access to a printer
proceedings for which the domestic violence has only a peripheral element. The response that assistance is available from information on government websites is only a partial answer. Certainly there has never been better, objective and well-presented information about using the justice process than presently available in many countries. But again this has issues for some of the language and intelligence.
The emotional needs of children are only part of a legal process where they are the subject of proceedings; but that process must recognise their needs, wishes and feelings and rights44. That will be an important challenge for any online scheme
In any event the whole heart of a justice system is the application of the law to the particular circumstances and how any rights and claims can be advanced. This requires advisers of some form of legal knowledge and qualification. This requires public funding.
Access to justice is a primary concern for many lawyers, politicians, advice workers and others connected to justice systems. It is already a matter of considerable concern with the substantial cutbacks in available public funding for representation. It is essential that advances with digital technology do not thereby create more inaccessibility to justice, even digital justice.
Conclusion
For digital technology in family law to work for the future, as it must, all involved in the family justice system must play their part. But certain members have a clear leadership role. Defying ageist stereotypes, the judiciary have been one of the leaders in the search for digital solutions. There have been endorsements from the leaders of the bar and Law societies. This is vital for collaborative work to speed up the adoption of the new technology.
The end result which the process must aim to produce is a fair determination for the parties. It must use a combination of existing substantive law and rights in parallel with technology. Law is the master/mistress. Technology is the willing servant.
Ultimately digital technology in family justice is about justice in families. Lawyers do not go into family law wanting to be legal digital technicians. They want to create fairness. They have a keen sense of the best interests of a child. They are committed to overcoming bullying and domestic abuse. They want a system which will help separating families come through the separation process as well as possible. Some of this can be done by non-lawyers including paralegals, mediators and other ancillary professionals. But most is distinctly the skills, experience and expertise of qualified solicitors, barristers and judges. The aims and intentions of family lawyers will not change with digital technology. However all around will be change. The way of working will definitely change. The expectations of clients will continually change. The procedures and possibly the law will change to be more fit for purpose in the digital working. There will be many new innovations and enterprises.
Through this all, the family lawyer will remain committed to working for the family law client and children. The way of working will be increasingly different. Nevertheless the emotional and legal needs of clients will mostly remain as it has through past generations and through past experiences of family life. Family law practice will change with digital technologies. The need for very good family lawyers will remain.
David Hodson OBE
44 e.g. Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24: child’s right to be heard
