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

On-line divorce scheme

A new practice direction for on-line divorce

 

As the debate on the EU withdrawal bill rages in the House of Commons I reflect on the latest practice direction to be added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title with the important omission – as I read it – that it does not tell someone who wants a divorce how to access the system so you can operate it. (I may be missing some obvious step, so I apologise in advance to any reader if that is right.)

 

The PD implies that it comes into operation on 25 January 2017 (is this what para 1.2(e) may mean?), though this is not stated. It represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). No, what I am concerned about is that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

Lawfulness of rule changes

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4)) which enables the rule-makers – in this case Family Procedure Rules Committee – to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (Courts Act 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274).

 

There is nothing to say a practice direction (which is a lesser statutory species) can alter a rule. (In the 1990s the then Lord Chancellor’s Department provided by practice direction for a selected group of county courts to have an ‘ancillary relief pilot scheme’ to try out a new procedure; but when it was pointed out to them that this could not – or should not – be done by practice direction they introduced proper rules, alongside a paragraph in Civil Procedure Act 1997 to enable pilot schemes to be set up).

 

Now PD36D says that where it ‘applies’ – though it is not clear from PD36D when it does apply – an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used. The problem comes full circle: what ‘form generated’ etc?

 

There are a number of references to ‘the online system’; but the practice direction makes no attempt to define what that means or to tell the prospective petitioner (‘applicant’) how to get into it.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ because that is what Courts Act 2003 s 75(5)(b) says. I doubt whether this practice direction is lawful (as explained above: the President using a practice direction to alter a rule, which is made by a statutory body); but nor is it ‘simple’ or particularly ‘simply expressed’ in a field where it must be designed to be used by private individuals proceedings without a lawyer. Yes, I know this was drafted over the President’ name, not that of the Committee; but he should adopt the same ‘simply expressed’ criterion, surely.

 

Apart from not telling a reader where to find ‘the on-line system’, whether it is compulsory or from when it runs, the scheme suffers from a number of further unclear aspects, such as:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the practice direction speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority).
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce.
  • The practice direction says documents required are on the on-line system (para 5.3); but does not say where the system is.

 

It would have been so easy for the person who drafted PD36A to have said:

 

  • this system applies to all divorces from [a date]
  • it is compulsory for such divorces
  • the system can be found at [link to site]
  • the petition must be accompanied by [documents needed].

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should have been amended by another rule (which is not an onerous task). Someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, any financial orders will have to be untangled.

 

It puts a duty on the adviser who is troubled by the legality of these rules. And I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).