Family Courts are in crisis, we need to embrace technology

This article by Setfords Senior Consultant Litigation Solicitor Alastair Sinclair, featured on Today’s Family Lawyer, discusses the backlog of cases at family courts, and how technology must be part of the solution.

Earlier this year, the Ministry of Justice reported that more than 100,000 children are trapped in a backlog of cases at family courts across the country. Vital decisions about their future are being held up for months, as the courts struggle to deal with the sheer number of cases.

Fixing the family courts backlog

As the new Government gets its feet under the table, fixing the family courts backlog needs to be high on the agenda. One of the problems causing the backlog is the dramatic reduction in legal aid funding. Too many cases are being delayed as people try to deal with divorce and children cases without the benefit of legal expertise.

In the first quarter of 2024, the proportion of disposals where neither the applicant nor respondent had legal representation was 40%, up from 14% a decade before. Cases are stalling because of incomplete paperwork or people not understanding the process taking up more of the courts’ limited time as they resolve basic problems, rather than dealing with the meat of the issue.

Given the strains on the public purse, we can’t expect a big change to legal aid budgets, or a huge increase in judges, so it’s imperative that we look at innovative ways of speeding up the progress of divorce cases in particular. The quicker we can get the easier cases through the courts, the more time can be dedicated to the more challenging ones.

As a family lawyer, my role is to help couples navigate the huge ramifications divorce can have on families and finances. Even with my expert help and where the parties are in broad agreement, the process of divorce can take months. It can often be 6-12 months for court hearing dates, trapping people in a difficult situation with all the frustrations and emotions that entails. As well as a financial cost, there is a clear social cost, with too often children stuck in the middle.

We owe it to our clients to make sure we are doing everything and using every tool to make the process as efficient as possible.

Technology for change

Change is now crucial, and the embrace of new technology must be part of the solution. In more than 20 years of practice, I have been little troubled by technological revolutions, but one is needed now. The whole system still needs reform. While a growing number of courts take electronic submissions, far too many still require the sending of large bundles of documents and papers.

We need to look at how information is shared between all the parties, and the courts. The introduction of the divorce and financial remedy law portal, where documents are uploaded for all parties to see, is a start. However, there is currently no portal for private children law matters, though this is being tested before being rolled out at some date in the future.

While the portal concept is a good one, it doesn’t compensate for the reduction in court staff which has so adversely affected the progression of cases. Response time to emails can now be months, telephone calls to the court go unanswered and papers are lost – with surprising regularity. If there is a problem, then it’s not getting resolved.

If you are self-representing, then you can use the portal, but it is extremely difficult to navigate for the lay person. The increase in self-representation has placed immense pressure on the courts with people compounding the problem by relying on online advice forums or information from the internet to guide them through the process.

The need for expert legal advice isn’t going to change, however, the potential benefits of technology are clear. The whole family law sector, from courts to lawyers, must look to speed up the process of divorce and family proceedings, and that means innovation. The Government and courts need to start putting in the infrastructure, frameworks, and regulations we will need to ensure that people can trust and easily use new technology like AI.

AI and the courts

We are seeing people using ChatGPT to help them do ‘DIY Divorces’ and children’s proceedings with mixed results. One of the first times I became aware of AI was when a father who was acting without a lawyer used ChatGPT for all written communications. This was perhaps understandable as English was his second language.

The responses generated by the AI often lacked the finesse and legal accuracy required. Some of the legal principles referred to were more akin to those used in US courts rather than UK ones. The technology cannot be fully deployed without expert human intervention. The risk is people think ChatGPT can give their argument meaningful legal effect, leading them down a blind alley, only for the court to reject it, adding yet more time and costs

At the moment, we don’t have specific rules or guidelines for using AI in law in the UK, educating people about its limitations. These are urgently needed. Unless we do something, the backlog will only grow.