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THE ROLE, BENEFITS AND CONCERNS OF DIGITAL TECHNOLOGY IN THE FAMILY JUSTICE SYSTEM

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? Where are there concerns for those who may be disadvantaged? How much can justice itself become digital?

  • 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

07973 890648

© April 2017

Biography

David Hodson OBE MICArbis 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’.

In 2015 David was appointed a visiting Professor of Law 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 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” (2nd 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 and a member of the Family Law Section of the Law Council of Australia. 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 on David and some of his papers and articles can be found on his personal website,

The International Family Law Group LLPis 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

Introduction

Family court systems are becoming digitalised in many countries. This process started in the mid-90s in places such as Singapore[1] 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 processs. In 2015 in England and Wales the government was announced that £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 million[2] programme to modernise the courts[3]. 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 family law respond?

It has to respond positively and constructively and enthusiastically. IT is now pervasive in our world[4].

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, 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 cry of the dying dinosaur?

Artificial Intelligence (AI) is already used extensively in some professions and industries[5]. 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 movements in legal services, sometimes brought about by the very high legal fees of lawyers[6].

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 law firms are under similar threat

Sometimes with arcane language, 18th-century wigs and formal cliquey rituals, the practices of English courts doesn’t appear to have evolved much since Horatio Rumpole was winning the Penge Bungalow Murder case on oral cross-examination at the Old Bailey. But would Horace’s successor now be so successful from his tablet?

Digital technology and the administration of justice

Although there had been some 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 Nottingham. It is initially a very limited pilot to test that the service meets the needs of its users rather than a full digital rollout. 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 Wales[7] will help mitigate against that risk and is currently progressing fast to a national launch in the autumn, fall, of 2017. It is hoped that in early 2018 it will be adapted to allow for the bulk use of the legal community. It is only the divorce initiating document at the moment but by 2020 it is anticipated that it will be the entire divorce process coupled with the initial stages of financial claims[8].

The aim is to remove some of the bureaucracy from often stressful and lengthy proceedings and simplifying cumbersome administrative processes.

Justice systems are now experiencing of 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

One anticipated benefit is that if the administration of most family court cases are dealt with digitally, then those particularly complex issues arising e.g. in listings or the forms being used, can have the available personal assistance from court administration staff. 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.

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 bundles[9] 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 being 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 expense[10].

The answer is digital bundles. Paperless, transportable and able to be read and used by all. Software has been developed to make 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 move to digitalisation. As at February 2016, 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.

There is also an awareness of the impact of difficulties with the number of cases. 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 time-consuming and easy to make. Putting documents in the wrong section or the wrong order or the wrong place can have a serious impact on the outcome.

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 English Justice Secretary, Elizabeth Truss, said[11] 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 and 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 cases which do require (or are indulged with) an in-court hearing.

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 hearings[12]. 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 clients[13].

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