Technological advances and rise in non-court dispute resolution could boost family justice system efficacy

For obvious reasons, there is a prevailing and overwhelmingly negative view of 2020 and how it has impacted families and the legal system that has been designed to protect them.

Despite this, there have been positive consequences for family law within the last year, some of which might not have happened had it not been for the pandemic. As the year draws to an end, Hannah Gumbrill-Ward, solicitor at Winckworth Sherwood LLP, considers how these unprecedented times have offered opportunities to innovate (for the better) and looks ahead to what 2021 may bring.

It is fair to say that the pandemic has accelerated the way in which the family court has embraced technology. The most significant change is in the use of remote hearings, which have vastly improved the process for certain types of hearings. No longer do clients incur the significant costs of a trek to court for a 30 minute hearing with many hours then wasted waiting at court for their case to be called. This cost and time saving has helped to make court hearings more effective, and the consensus amongst legal professionals seems to be that for directions hearings and short procedural matters, remote hearings should be here to stay (although of course they are not suitable for all matters).

The near universal use of electronic bundles is the other technological advantage to come out of the pandemic. This is of enormous benefit to legal professionals (and their lower-backs since they no longer need to lug suitcases full of lever arch files around) and, when prepared correctly, they are much more navigable during the course of a hearing. Progress had previously been slow in this area but the onset of the pandemic forced our hands, modernising the court and making it more efficient and environmentally friendly in the process.

Digital reform has also been advancing the administrative processes of the family justice system and, over the course of the last year, HMCTS’ online platform has expanded to the benefit of all its users. Although originally launched in 2018, the use of digital divorce has exploded this year and between April and June, 54% of the total divorce cases were digital, up from 28% during the same period in 2019. MyHMCTS is constantly upgrading and adding to its functionality, and now includes the ability to apply for financial consent orders online. Rather than taking months to get placed before a judge, some consent orders are approved and a sealed within a week. Applications for child arrangements, specific issue and prohibited steps orders can all also be made via the online system.

Looking forward to 2021 and what may be on the horizon, technological advances are again likely to dominate. For separated families, the ever increasing availability of apps that offer a place to share information and communicate are likely to be of assistance as we continue to navigate the ‘new normal’. Some of these apps have been around for some time (and are very common in other jurisdictions, including the US) but are being innovated and refined, with the take up increasing exponentially. For high conflict families, some family judges are not only advocating but ordering their use. Features are diverse and include the ability to send and receive secure, recorded messages, colour coded calendars to allow separated families to keep track of who is where, when, expenses logs, and the ability to upload photos and store information about the children. These have all been designed with a view to enhancing the co-parenting experience and allowing effective communication between separated parents for the benefit of their children.

Advancement for separated families in 2021 may also be seen in the increased awareness, and uptake in the use, of non court dispute resolution including mediation, parenting courses, family therapy and parenting coordinators. Already widely used in the US, Canada and South Africa, parenting coordinators help separated parents to try to develop a more positive parenting relationship for the wellbeing of their children. Their use is especially useful in high conflict families as the aim of instructing a parenting coordinator is to give separated parents the tools and support they require to enable them to implement a court order or parenting agreement, make decisions that are in the best interests of their children and keep cases out of court. A study on the effectiveness of parenting coordination showed that there was a 50% reduction in total court applications made where a parenting coordinator had been appointed, and a specific reduction of 75% for child related court applications and 40% for all other types of court application.

As the pandemic continues to have far-reaching consequences and we try to navigate the challenges it brings, will 2021 be the year in which the much talked about pressures on the family justice system will start to be addressed with the greater use of technology and alternatives to court?  Only time will tell.