On-line family law, discussion continues

Hello Roger

 

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?

Roger Smith: on-line family law – a reply

Hello, David,
I am more than happy to debate the impact of new technology with you. I have been an admirer of your work for many years. Part of the whole point of the Legal Education Foundation’s initiative in the field of technology is to increase discussion of developments.
Let me make an opening point. The nub of my New Law Journal article was not really a focus on automation. My concern is to increase understanding of what is happening at a time when the provision and delivery of legal services is changing very fast and to indicate best practice and interesting experimentation around the world. Unlike Richard Susskind, I am not an advocate of the brave new world that is approaching: I am more of an analyst – with perhaps an exception to which I will return.
The legal world is changing under the pressure of a number of forces which are different though linked in their relationship to technology. The main drive for automation comes through the deployment of artificial intelligence. The main users are the large corporate firms who can afford the initial investment. Their aim is to cut the cost of processing large volumes of documents for the purposes of commercial transactions and litigations. The consequence will be the threatening of large numbers of jobs and potentially a restructuring of the ‘top end’ of the legal profession. There will be less need for trainees, solicitors, paralegals and outhousing if machines replace people in document review. And they will. That is where I think that if a job is predictable then it will be automatable.
“HIgh Street’ practice will be affected in a rather different way. Traditional, geographical based, relatively small firms will be challenged (though not necessarily over-run) by those which are virtual – maybe based, for example, as you are in France and covering the whole country – or under a national corporate brand like Co-operative Legal Services or Slater and Gordon. And note that word ‘like’. I know that both these businesses face specific financial problems. I don’t think that these are integral to their business model. I don’t think you can take a view about whether this is a good or bad thing. It just is. And practitioners will have to take their own response to what is happening.
A different force for change will be the headlong rush by the Lord Chancellor to introduce online courts at breakneck speed. You might think that this likely to be too fast; at a speed which precludes proper piloting; in a manner which is likely to pay no heed to the need for personal assistance highlighted in I, Daniel Blake; and fuelled too much by a desire to flog off valuable inner city real estate. That certainly is what I have repeatedly written. The jurisdiction which is in the advance in this field is British Columbia and it has been notably more humble, thoughtful and gradual in the implementation of its Civil Resolution Tribunal.
Linked to the proposed introduction of matrimonial on-line courts have been the cuts to matrimonial legal aid. These were outrageous and have manifestly left a whole constituency that even the government feels uneasy about drifting without assistance at a time of emotional turmoil. Their position as a whole will not be helped all that much by long overdue easing of definitions of domestic violence. In the light of these cuts, I am interested in how this gap might be met by technology and I have been impressed by interactive websites like the Dutch Rechtwijzer which have tried to leverage the value of the net by directing information to individual circumstances rather than just using a wallpaper model of dissemination. There is a real need here. The proper answer may be reinstatement of legal aid. That ain’t going to happen. We can lament that: I do. But we have to see how we can improve the information and advice to those who have all too much need for it.
The thing that actually got my interest in the field was a presentation at a conference of how the Californian courts had collaborated with an NGO in Canada to produce information on family breakdown. The Families Change programme has now gone national in Canada. This seemed such 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. This seems to me an example of technology allowing an expansion of engagement with the human consequences of legal action that is not usual in conventional legal practice. I am an enthusiast in terms of encouraging such a trend.
So, I have no brief for legal aid cuts or simplistic implementation of on-line courts. And certainly none for any reduction of standards in relation to the rule of law and the quality of court determination. I do think that technology is going to change our whole world. And law will not escape. And there will be good and bad effects. And we need to analyse which are which. And we need to engage in debate and discussion at a specific level about what can practically be done.
Best wishes

Innovation and an online family law sector

Open note to Roger Smith

 

Hello Roger

 

The nub of your article in New Law Journal 17 February 2017 seemed to be: ‘We are talking of automation of any element of a job which is predictable’. You were talking about automation of appropriate part of the legal process, and predicting job losses of between a third and a half in legal services just as in the motor industry.

 

My lap top is open, Roger (as you urge at the end of your article); but I am sure I am nowhere near your league for technological ability. That said, I am no Luddite. I have felt for years that procedural clarity and reform to achieve savings of costs should precede legal aid starvation; and that if clarification is not achieved – a slightly different point – then the rule of law is threatened. Yes, yes, yes, you say… OK, I’ll come back to earth; but the need for a rule of law in all this must be kept in mind.

 

In my own field a divorce on-line scheme has been introduced by Ministry of Justice (http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-36d-pilot-scheme-procedure-for-using-an-online-system-to-generate-applications-in-certain-proceedings-for-a-matrimonial-order; and for a discussion of it see https://dbfamilylaw.wordpress.com/2017/02/03/on-line-divorce-scheme-an-update/). That must be one of the most obvious fields for on-line efforts. Unless a divorce is defended there is no need for any exercise of a judicial mind (though even with that I cannot see how a client gets into the scheme – pilot or not – as things now stand). Access apart, a divorce on-line cannot be much of a challenge, for the Ministry of Justice; though my search for it on-line does not enable me to find it any longer. .

 

Let us look at child maintenance. Like income tax as an end, it is essentially a two-dimensional problem. Work out someone’s income; count up the dependent children; and then say what proportion the payer parent must pay. There are relatively few external factors. The Department of Work and Pensions are onto their fourth major reform of that idea over nearly 25 years; and still (if they are honest) I suspect the arrears are mounting. I accept that is as much an administration and an enforcement problem. Maybe online access to, and operation of, the scheme would help a lot; but on-line enthusiasts will see that – even for this two-dimensional issues – there are problems.

 

But, Roger (and while I think of it): you know what you are doing when you open your lap-top. Remember that there are still Daniel and Daniella Blakes out there who cannot – or like a very good classics PhD friend of mine, will not – access the internet. Will our brave new internet world impose that obligation on them? Will conscientious objection be recognised? Or is a right not to use the internet to be lost? Will all of us have to submit to the Big Brother surveillance which internet access makes inevitable? (I remain bewitched by its powers. I could not do my job without it. That doesn’t mean I would deny a person the right not to use it; any more than I would destroy your fountain pen.)

 

But back to my law subject: I entirely agree that we should simplify process. This must be so, and where legal proceedings are needed, where mediation has failed: for more on mediation etc online see Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group (of which you were a member: http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf ; and see my comment on this at https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/).

 

If family litigation, say over money, has not been resolved by mediation, it must be easier to find a largely on-line scheme than the matrimonial finance process we have at present. Whilst, as every family lawyer will say, each family is different, there must be enough common features about most families with relatively straightforward finances to reduce initial – perhaps most – stages to a similar framework. This will cut out a lot of work now done needlessly (eg disclosure of unnecessary documents). Great expense to the parties on lawyers – or, with legal aid reduced, wear-and-tear on their lives to the parties themselves.

 

And once we think about it, I am sure – without disproportionate damage to the family law legal system – that lots of ideas can be developed; and this within a procedurally simplified family law on-line system.

 

Worth a chat?

 

David