Many thanks for your prompt reply. I do understand your wish to increase understanding of changes which are happening around lawyers (and our clients), in terms of technology.
I would like to deal with the changes by saying that they provide a real chance to look at family law procedure afresh.
The end result which the process must aim to produce is a fair determination for the parties. How best can this be achieved? 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. If procedure, as I believe it is, is the means to achieve justice, how far can if work with technology and clarify the process.
In your reply you mention a scheme in California derived from Canada. This seemed to you:
‘…a good example of how technology is international even if law is irredeemably national. One of the most interesting parts of the project was a focus on the emotional needs of the children involved rather than those of the parties to the litigation – who would generally be their parents….’
Yes, but maybe legal principles are not altogether ‘irremediably national’. For example, we could agree that welfare of children ideas can be international (see for example United Nations Convention on the Rights of the Child 1989: noticed hardly at all, it must be said, by English judges). A right to a fair is increasingly international; though you will know more than me of the extent to which it is observed in practice. If these concepts can be part of the bundle of rights which are there in a group as the outcome of justice, then technology and procedure can work towards that.
English family breakdown law has four components: children (where they are still dependant); money (income and capital); domestic abuse; and status (if a couple are married or in a civil partnership). These will be replicated in various ways in most other jurisdictions, with money and divorce varying most in all probability. In English law divorce (save where defended) is already an administrative arrangement, one the decision is taken, and is ripe for on-line disposal. Money proceedings may be easy for those with a more modest income – and no doubt crying out for help from a simpler procedure where lawyers are still very expensive. Save for the end result welfare test, child law procedure presents greater challenges; as does – perhaps – domestic abuse.
The demand is to redraft a fair set of procedural rules which (a) lay readers can understand and (b) which will work with technology, as it develops. And throughout it must be done in a way which is not designed for geeks (techno enthusiast and lawyers). The comfortable level of understanding of the lay party to a family breakdown must always be kept in mind.
The emotional needs of children are only part of a legal process where they are the subject of proceedings; but that process, where it is needed to, must recognise their needs and rights (see eg Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24: child’s right to be heard). That will be an important challenge for any on-line scheme (save that most children are much more adept on-line than most of their parents).
As a family lawyer I see a scheme which must start from the needs and rights of parties which it is designed to protect. Children, and their welfare, is the dimension in family proceedings which other litigation (‘dispute resolution’) does not have. The generic requirements of cases need to be defined; and then a procedure – with technology in mind – can be worked out from there. Many existing rules will be adapted, or incorporated pretty much in their present form; though in modern language, where need be. And all will be developed alongside new technology….
A field I know quite a lot about in law, especially in family law, is disclosure. Too many documents are exchanged. This is where proportionality comes in. If the rules are more clear for family proceedings than they are now, surely this is an area – whatever the complexity of family finances or not – which cries out for an IT response? And this response with well-drafted new rules and proper attention to confidentiality (of children and their parents) might be one place to start?