Has the Family Law System Avoided the Backlog?

The family legal system in England & Wales is digitalising at an expansive scale. QEB’s Thomas Haggie and Milad Shojaei explore the digital transformation and resilience of the Family Law courts in the 12 months to April 2021.

Introduction

The family legal system has undergone significant changes in recent years. These changes include electronic bundles, online diaries, and improved electronic communication between legal professionals and court staff. In 2015, the UK government allocated £500 million to digitise all court systems. Technological reforms also play a crucial role in the 2019-20 Her Majesty’s Courts and Tribunal Service’s (HMCTS) business plan. It is fair to say that the move toward digitisation was continuing at a dissimilar pace prior to the pandemic. The necessity of remote working created by the virus has dramatically accelerated the changes. These are largely changes for the better.

The initial groundwork of the digitisation plan had a reasonable effect with over 41,000 applications processed in a digital divorce system. However, it was the pandemic that tipped the scales in favour of digitisation. Before the first lockdown, remote hearings were unheard of. The majority of documentation used in court was paper-based, and digital alternatives were not favoured. By July 2020, 90% of hearings were conducted remotely, and digital workflows became the norm. It is unlikely that the courts will want to return to previous ideals in future, as the need for innovation and remote working has provided the necessary stimulant to implement positive change.

How are the family courts avoiding the backlog?

There was a significant burden on the family justice system prior to Covid-19 and throughout 2020. The Family Court has demonstrated surprising levels of resilience to the challenges caused by the pandemic. Although the number of weekly cases received in public family law increased by 15% in the wake of the pandemic, the number of outstanding cases has only risen by 10%. Considering the substantial challenges that the Criminal Justice System (CJS) and Employment tribunals are enduring, the question beckons, how has the family jurisdiction avoided a similar backlog?

Implementation of digital technologies

Firstly, digital technologies have been implemented to effectively address the backlog at the family courts as it saves time, money and facilitates wider accessibility. The introduction of online forms and a digital divorce service has already significantly reduced error rates. This saves legal professionals time and allows them to work through cases without delay.

Remote working and digitisation efforts

When it became clear the pandemic would have a significant change to working practice, there was a concerted effort to prepare the system for full-scale remote working. Mr Justice Mostyn issued an E-Bundle protocol for the Financial Remedies Courts in early March 2020. The rapid integration and adaptation of remote working, and the family courts’ ability to leverage the advantages of digital technology, has proven crucial to increasing court capacity during the pandemic.

In particular, the London family courts have been commended for their crucial move towards digitisation. The West London Family Court and the Central Family Court became entirely digitised in February 2016, creating over 1,000 digital cases and savings in the region of £850,000 compared to the paper-based process.

Adoption of bundle sharing solutions

Moreover, various local authorities and family courts have effectively adopted bundle sharing solutions to deal with the pressures of outstanding cases. Digital e-bundling has stepped in to assist evidence and documentation preparation required to enable remote hearings.

Digital e-bundles also eliminate the time-consuming challenge of creating and maintaining paper-based court bundles and reduce the risk of lost or missing documents.

Creation of digital courtrooms

The creation of digital courtrooms has improved accessibility and communication between legal professionals and court staff. Through integrating technology into their daily lives, legal professionals can reliably update, repaginate, and distribute documents securely and at greater speed.

Overall, this approach has allowed for better case management, collaboration and improved efficiency which has alleviated strain on the system.

More permanent changes needed

The family law system began implementing digital reforms many years ago. However, the pandemic accelerated much of the progress seen in recent months, which would have otherwise taken significantly longer. The strengths and weaknesses of virtual courts have been highlighted in recent months. If we are to address the problems, we must continue to unlock efficiencies on a permanent level while involving all legal consumers in the transition into a new digital age.

Had the justice system considered the potential setbacks associated with remote hearings and paperless workstations earlier, we would undoubtedly have had more inclusive digital reforms taking place. Given the benefits of the changes made to the family law system, it is unlikely that we will regress. Experimentation is a process and not a one-time fix; with this in mind, we must drive forward further reform initiatives and look for innovative solutions to existing issues and those that emerge in the future.