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A justice system in crisis and a vision of the future

Two important reports on the justice system have been published this week. Although neither is aimed specifically at the family justice system (although both refer to it), they do have significant things to say that are relevant to family justice, and that could have serious ramifications for its future.

The first report that I want to mention is the annual report to Parliament, for 2015, of the Lord Chief Justice, Lord Thomas of Cwmgiedd.

Although Lord Thomas’ report is written in a sort of self-congratulatory tone, justifying the government’s investment in modernising the system by reference to all of the good things that are being done to bring the system up to date, it does, as has been noted in the media, let slip a number of matters that tell of a system in serious crisis. I will mention just one of those matters here (perhaps the most worrying), although it has several elements.

Lord Thomas tells us in his introduction that our system of justice has become unaffordable to most. “In consequence”, he says, “there has been a considerable increase of litigants in person for whom our current system is not really designed.” This, he says later, is increasing the burden on judges, which is having an effect upon their morale. He does say that over the last year “…The judiciary continued to innovate by improving its procedures and resources for the ever increasing number of litigants in person”, but clearly their efforts (which obviously have been part of that burden) have not been sufficient to eradicate the problem.

There are surely two parts to the affordability issue, although Lord Thomas only mentions one in his report. The unmentioned part is the abolition of legal aid which has been the main (and entirely predictable) cause of the increase in the number of litigants in person, and which may also have led some to decide against pursuing their rights through the justice system at all. The other part is the increase in court fees, the impact of which Lord Thomas says has left the judiciary “deeply concerned about the effect on access to justice”. It is true that the worst increases in fees relate to civil, rather than family, cases, but increases to fees on divorce petitions will surely have an effect for those who earn too much for a fee exemption, but not enough to afford the higher fee, as I mentioned here.

What is to be done about this affordability issue? That is where the second report comes in. This is Lord Justice Briggs’ interim report in connection with the Civil Courts Structure Review.

This report provides us with a vision of what the future holds in store for the justice system, possibly ultimately including the family justice system. The report cover many topics, but “the single most radical and important structural change with which [the] report is concerned” is the establishment of an Online Court. Lord Briggs says that there is “a clear and pressing need” for such a court “for litigants to be enabled to have effective access to justice without lawyers.”

The Online Court is therefore designed specifically for use by litigants without lawyers. Contrary to what one might expect from the name, it is not intended to be entirely online. It will have three stages: Firstly, a mainly automated process by which litigants are assisted in identifying their case (or defence) online, and required to upload the documents and other evidence which the court will need for the purpose of resolution. Secondly, there will be “a mix of conciliation and case management, mainly by a Case Officer”, which will be conducted partly online and partly by telephone. Thirdly, the case will be determined by a judge “either on the documents, on the telephone, by video or at face-to-face hearings”. The whole process is intended to be less adversarial and more investigative, making the judge his or her own lawyer.

Lord Briggs proposes that the Online Court will, initially at least, be only for civil claims up to £25,000. However, he does not rule out the possibility of extending it to other cover other types of cases, if the concept proves to be a success. Although the prospect fills me with dread, I can envisage the Westminster cost-cutters deciding that it would be a good idea to introduce a similar system for family justice in the not too distant future.

There are many points I could make against the concept of an online court (what about those who have no internet access? What if the computer system goes down? etc.). But the key claim that it does away with lawyers is a delusion. The fact of the matter is that, even if they have to use the court, those who can afford it will still seek legal advice, and will therefore be at an advantage. We will therefore still be left with a two-tier system in which the better off will get better justice.

As for the idea of using an online court for family matters, how would this work if, as is often the case, both parties are still living under the same roof, possibly still sharing the same computer? What about complex cases, especially those involving children? Will the court be able to identify what evidence is required, when without legal advice the parties may not be aware that certain matters are relevant, and may not mention them? My biggest objection, though, is the whole concept of something as people-oriented as family justice being dealt with largely remotely, often by faceless individuals that the parties may never meet. How such a system could result in good family justice is beyond me.

So, a bleak present, in which many cannot afford access to justice, and an even bleaker future of remote automated ‘justice’. It’s all rather depressing, I’m afraid.

The Lord Chief Justice’s report can be found here, and Lord Justice Briggs’ report can be found here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. spinner says:

    So adopt Ruth Deech’s reform for the financial’s in divorce, bring about some certainty for everyone and reduce litigation. It’s really not that complicated.

    • Marilyn Stowe says:

      Dear Spinner
      Why? As drafted it will promote manifest unfairness into the future. What’s so good about that?

      • Nordic says:

        Dear Marilyn
        Why? What is so manifestly unfair in what the baroness is proposing and precisely who is it unfair to?
        Our current system does everything it can to make parents fight over money. Is that fair? Does that look after the kids wellbeing and interest?

      • spinner says:

        “Why?” – bring about some certainty for everyone and reduce litigation

        “As drafted it will promote manifest unfairness into the future.” – That’s your opinion, it’s my opinion that the current system has so much discretion that personal and regional variation’s are huge so the same case with the same facts heard even in the same court by two different judges could have a very different outcome, that is literally the definition of unfairness.

        “What’s so good about that” – That’s a very silly way to end a sentence when you are trying to make a point, you state your opinion and then assume you are correct in that it’s a negative outcome and then ask why would that negative outcome be a good thing, I would have thought you were better than that.

        England and Wales are pretty much uniquely backward in dealing with divorce, having a defined system is the norm in modern advanced countries, it’s time we moved to that and Ruth’s Deech’s proposal’s are very well thought out from a very intelligent women who has been involved in this area for most of her life.

      • Luke says:

        Marilyn, you won’t be surprised to know ( 🙂 ) that I agree with spinner on Ruth Deech’s reform for the financial’s in divorce – it is the most clear headed realistic proposal I have seen on the matter.
        I was going to add that the only major caveat I have is that 3 years may not be enough spousal maintenance in truly exceptional cases and that where a spouse has spent 25 years not working an absolute limit of 6 years might be possible (perhaps at the extreme one year to sort out the mess; 4 years education; one year to find work). I find, however, that the Baroness has even allowed for that by saying spousal maintenance could be longer “subject to certain exceptions”.
        I think 6 years is very generous, I don’t think it should ever be longer than that. Now you might argue that after 6 years they might still not be earning the same as the spouse who has always worked – but I would argue that the decision to not work for 25 years IS a choice – and a privilege. in the end one has to face the reality that the marriage is over and the other person should not have to carry their financial burden indefinitely.
        To be honest I am struggling to see how this would not be viewed as reasonable and would cut out all the horrible uncertainty of divorce.

  2. David Mortimer says:

    What the Government wants to achieve is recorded in Hansard which is to limit the time each case takes & to stop parents from being able to question the states new expertly trained social workers who’s word will be taken as gospel in every court. The right to a fair hearing has certainly ended which might be why John Hemming told parents to flee the country if the social services accuse them of abusing their children or face loosing them.

    Children & Families Bill goes nowhere near as far as you or I would wish 10th January 2014

    Second Reading of the Children and Families Bill in the House of Commons 25th February 2013

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