By Nadia Rusinova, LL. M., Attorney-at-law and Lecturer in International/European private law at The Hague University of Applied Sciences, International and European Law Department.
Digital spaces now hold an important place in our democratic societies. “Access to justice” in this context is much discussed issue, however it is not always seen as quite complex as it ought to be, as it includes issues of both ways of accessing the law and access to dispute settlement procedures. However, not everything is all gloom, the developments occurring in this area provide opportunities to improve the quality and efficacy of judicial institutions. That said, they do not come without their own challenges, including requiring specific safeguards to ensure the effective and efficient implement of these new developments.
Recently, after a lengthy research process, the Council of the EU published the Council conclusions ‘Access to justice – seizing the opportunities of digitalisation’. This is a comprehensive set of conclusions adopted on 13 October 2020, broadly taking into account the recent developments due to the pandemic and mapping further digitalisation of the European Union (EU) member states’ judicial systems. These conclusions encourage Member States to increase the use of digital tools throughout judicial proceedings and call on the European Commission to develop a comprehensive EU strategy on the “digitalisation of justice” by the end of 2020. The clock is now ticking. They also note the need to promote digital skills in the justice sector to allow judges, prosecutors, judicial staff and other justice practitioners to use digital tools effectively and with due respect for the rights and freedoms of those seeking justice.
To a high extend these conclusions and recommendations are applicable to the family law proceedings. However, the process of automating family law, being associated with non-litigiousness proceeding, affording priority to the wellbeing of children, and managing intra-family conflict, brings wider range of complexities. This post will explore the concept of digital family justice and the digitalisation of the family courts as a response to the global “Lockdown”, identifying general but also few specific challenges related to family disputes.
Digital family justice and the digitalisation in the context of the Covid-19 Pandemic
At the time that social distancing measures were introduced, the family justice systems Europe-wide were at different stages in implementing a variety of digital technologies. Some EU countries had already started using digital tools in the field of the civil and family justice, for example conducting of digital court proceedings, electronic communication between the parties, electronic transmission of documents, and the electronic communication between the courts in cross border cases (particularly international child abduction disputes). Other countries were far behind in their implementation of tools relating to “Cyber justice”, a somewhat misleading term. At a supra-level, the ones that already have been deployed in European judicial systems relate to access to justice, communication between courts and professionals, direct assistance for the work of judges and registrars and, finally, court administration. These have been mapped by a few consequent editions of the CEPEJ report “European judicial systems: efficiency and quality of justice: Use of Information and Communication Technologies in European Judicial Systems” and the Guidelines on how to drive change towards Cyber justice.
However, all at once, digital court proceedings became the new normal given the global pandemic. Take for example the UK, the family court system was already undergoing reform as part of the Ministry of Justice’s £1billion modernization programme initiated in September 2016, which aims to employ digital technology to improve efficiency and expand access to justice. To illustrate the advancement of the reform by the immediate ability to conduct fully remote hearings in parental disputes after the Lockdown, as reported here using Skype for Business Mostyn J was able to complete, remotely, a final hearing involving five parties, taking evidence from eleven witnesses, including evidence from four expert witnesses, and to conduct the hearing in the presence of the press. On the other end of the spectrum, according to the “Consequences of the Crisis in Family Law Matters and Jurisdictions in Europe” in Spain, for instance, where the system for management of remote and electronic notifications used in the Spanish Administration of Justice appeared to be inoperative, since the Judges, Court officers and Clerks have neither access keys nor systems to be able to connect remotely. Similarly, Bulgaria, where the courts are otherwise equipped with electronic case databases for access to court files, did not employ at any point any digital means to conduct remote hearings.
Challenges – general and family-law specific
The right to a fair trial safeguarded by the European Convention on Human Rights and Fundamental Freedoms (hereinafter: ECHR) as well all the instruments for promoting the quality of justice must not be undermined but, on the contrary, must have their effects extended by the digital technologies. And indeed, the digital tools of Cyber justice now contribute to the greater efficiency and effectiveness of judicial systems, especially within a general context of scarcer resources.
1. In this sense, four general (yet closely linked with the family law) areas of legal challenge can be identified.
1.1. The expectation that legal professionals can demonstrate IT literacy and skills. Lawyers, judges and all professionals involved are undoubtedly required to be proficient users of a range of IT platforms and to be competent trouble-shooters when problems arise. The assumption is that the available equipment can be used by court clerks and judges, because there is usually an easy-to-use touch screen, cameras have predefined positions, and the general digital literacy is relatively high level. In many cases this is indeed true and the legal practitioners perceive ICT in law as a tool for boosting or complementing the functions and skills of the legal profession. These ones have a balanced understanding of the purpose of ICT in driving the profession and the belief their skills must be further enhanced if legal professionals are to excel. They are aware of the creativity aspect of the practice which ICT may not provide for. However, this might well not always be the case, especially when prior trainings haven’t been provided. As discussed here, small but still existing part of the legal professionals are not inclined to become high-skilled IT specialists. The “old school” legal practitioners with little or no knowledge of ICT prefer to work with materials directly obtained from sources that are credible, not the dematerialized works that could easily be manipulated and therefore corrupt. Evidential legitimacy remains an issue in Cyber justice.
Another aspect is pointed in the Nuffield Family Justice Observatory (hereinafter: NJFO) rapid consultation on the use of remote hearings in the family court. Several professionals, including judges, mentioned that sight and hearing difficulties affected their ability to use technology, and to follow remote proceedings. This was a particular issue for hearings conducted by telephone. Some felt that they could manage better with video—where they could see all participants—and mentioned a preference for this format.
1.2. Inconsistent access to e-justice due to the lack of standardized approach to different types of cases. The experience shows that the digitalisation unavoidably promotes inconsistent access to justice in the courts. The first caveat is the merely absolute discretion of the courts in deciding which proceedings would be appropriate for adoption of remote hearing technologies. From the outset it has been recognized that there are some cases that are not suitable for remote hearing, including in circumstances where a party is unable to participate in such a hearing, for example by reason of a lack of access to the requisite technology or the need for the services of an intermediary or an interpreter, or the court is required to take evidence in circumstances that render a remote hearing unsuited to that task. In these cases, the court needs to consider a hybrid hearing at which one or more participants attend court before the judge and the other participants attend remotely, or vice versa.
Once decided a hearing is suitable for remote handling, the second issue is how exactly and by which electronic means these remote hearings to be conducted. Currently, some of the private law hearings are being conducted by plain use of telephone (recent example from the Netherlands here), others by video-conferencing or by combination of in-person interaction and electronic means. The use of a diverse range of IT-platforms, while understandable in view of the mixed technological capabilities of the courts and court users, will results in contrasting experiences for litigants in terms of the manner in which their hearings are being conducted. Some litigants, therefore, are attending court at hybrid hearings, while other parties attend proceedings remotely; some attend by using IT platforms that enable access by video-conference; and some never see the judge, opposing parties or their representative at all if proceedings are conducted by telephone.
It is not always clear why a particular type of technology is being used, although the type of case, the availability of technology and court resources, and the preference and technological capability of the judge appear to be the most common determinants.
1.3. Lack of consistent ways to communicate electronically with the courts. The achievement of a user-friendly, stable and trustworthy means for transmission of procedural documents, submissions or accessing case-file documents is lengthy and costly process. Migration to a fully electronic system, which has been experienced as a major undertaking by all the countries that have embarked on it, is complicated process and generally comprises two stages. First, it needs establishment of secure communication through normal electronic mailboxes, which means that data have to be processed by a member of staff at the point of entry to the court system like any other mail unless already delivered in digital form together with the relevant documents. The second one is ensuring the direct input of the lawyers’ documents into the court’s information system (“e-filing”) without data being input or transferred at the point of entry to the court system by a member of staff, who in this case merely verifies their submission and their legal effects (opening a case file, interruption of a limitation period, etc.). Wherever successfully implemented, such advanced systems clearly reduce the work of court registries, and some countries are considering refocusing this work on high-value legal activities and assistance for judges and prosecutors. However, not many judicial systems are that far ahead with the e-filing and digital access to case documents, which promotes inconsistency in the communication with the courts.
1.4. The technical issues. As pointed in rapid consultation, analyzing the reflections and experiences until September 2020,there continue to be many technical problems encountered in most forms of remote hearing. Most problems related to connectivity and common issues identified included dropping out of the hearing, difficulty in hearing people, difficulty seeing people, and difficulty identifying who is speaking.
2. We must however note that particularly in family disputes it is crucial that the deployment of digital tools should take account of multiple issues like the requirement to guarantee higher quality standards, the inherent vulnerability of the children involved and the decisive role of the passage of time. Specific for this area of law, the recent experiences show as well several main challenges.
2.1. Digital exclusion risk of vulnerable litigants. It is important that the contemporary justice system is inclusive and accessible to all. The term “digital exclusion” should be read broadly – it includes those who lack access either to the internet or to a device, or the skills, ability, confidence or motivation to use it – as well as those who rely on digital assistance. A significant proportion of people still lack even basic digital skills, or are unable to access the internet reliably or at all. While technology has so much scope to enhance access, there are therefore also legitimate concerns it can, in some circumstances, be a barrier to justice. Many respondents to NFJO’s rapid consultation expressed serious concerns about the fairness and justice of telephone or video hearings, particularly for parents in care or related proceedings; parties with disabilities affecting communication and understanding; and those attending courts without legal representation. Therefore, the first and most obvious family law specific concern is that remote access processes are having a profoundly negative impact on the manner in which vulnerable litigants are able to participate in hearings and access justice. In family law disputes, and in general in disputes heard by the family courts, interest mainly of children but also of disabled people are traditionally involved and the professionals have ethical duties not only to the administration of justice and, but also to ensure that children’s interests are properly considered. Lawyers representing disabled clients and guardians ad litem of children are expressing variety of worries. Among the others, if the persons concerned would not have the devices necessary to read electronic documents or would have difficulty using such devices, the digital exclusion will be logical and major consequence.
In addition, the problems are magnified if interpreters, intermediaries and advocates cannot be physically with their clients or person needing support and if the systems set up for the hearing do not take account of the type of support that is needed.
2.2. Significant influence of the lack of personal interaction on the outcome of the family dispute. Compared to other areas of law, the importance of human interaction for family law cases is immense. Virtual hearings have been widely adopted within the family court during the coronavirus pandemic, but there are question marks over their fairness and scope for humane practice. Issues have also been raised around remote hearings’ reliance on technology, and around support for parents and families, which is lacking in many cases. NFJO’s rapid consultation found that two in five parents and families (40%) said they had not understood what happened during their hearing, and many voiced concerns about how difficult it is to create an appropriate environment in which to deal with “personal and painful matters” via a telephone or video link.
Another aspect is that in family law disputes the personal impression that the judge from parties involved is very often crucial. Not being able to see people, including in video hearings where vision is restricted, also impacts on the ability to pick up on body language or other non-verbal cues. Therefore, when conducting remote or hybrid proceedings, the additional burden is that judges should always be cautious of the above so that their decisions are not influenced by the constraints of a computer system. As the European Commission for The Efficiency of Justice (CEPEJ) already pointed in the Guidelines on how to drive change towards Cyberjustice, the continuous remote work in the judiciary increases the risk of depriving the judge of her decision-making capacity or of confining her power to judge within too formal a framework. The human interaction in this sense needs to be preferred at any possible moment, because the excess workload in such conditions may lead to automation of the tasks performed or reliance on standard judgements.
2.3. Impaired social work on family disputes. Generally, all court and administrative proceedings concerning children (inter alia, parental rights cases and adoption cases, placement in foster care or residential home, dealing with unaccompanied asylum-seeking young people) require mandatory social assessment. The social workers involved in family disputes traditionally and logically perform their duties by personally interacting with the parties concerned. This special category of professionals, trained to observe by maintaining relationship-based practice, have recently faced considerable difficulties when using technology to adapt their practice for lockdown. The quality of their work had been undermined by a steep reduction in direct contact with the children (or other vulnerable persons) they support, especially where disabilities present barriers to virtual contact. Across all types of social work, routine tasks like preparing report for the family court in pending parental dispute or adoption case is suffering due to being carried out remotely, and takes more efforts and use of additional facilities to provide good quality result.
2.4. Difficulties due to the multitude of online sources of complicated and potentially confusing legal information in cases when the litigants cannot afford legal assistance. Family law has historically been an area that many people end up with only limited legal assistance. Litigants are individuals, rather than corporations, and separation typically generates enormous financial pressures as parties face solving complicated financial situations and financing the running of two households instead of one. The unaffordability of legal services is a fundamental issue in family law, therefore the simplified access to different kind of procedures is crucial. In many EU countries the funding of legal aid continues to decline, and a large proportion of people do not qualify for legal aid yet are unable to afford the cost of engaging a lawyer. Indeed, nowadays many free-of-charge sources of information and various templates related to family court disputes are available online. Despite the volume of information, non-lawyers seeking family law information in the online environment reportedly find it difficult to use it due to its complexities, and hard to evaluate the credibility of different sources. Particularly in cases where the timing is decisive, like domestic violence procedures, such issues may impair the outcome and bring potential danger for the affected person.
The road ahead
Undoubtedly, the use of remote, virtual and online proceedings is set to expand across the justice systems, taking it into the 21st century and beyond. This is an opportunity to improve access to justice for substantial numbers of ordinary court users. The potential benefits of accessing justice services online rather than in person include a more accessible and understandable way of interacting with the court, increased convenience, reduced cost, and the ability to stay better informed of the progress of one’s case – without the “delays, and constraints that come with physical hearings”. To be successful, sustainable and fair, each digital transformation strategy roadmap should aim at few general objectives.
Equitable Access to Justice is always a priority. A justice system that is more accessible includes digital services that are self-serve, on-demand, and personalized, as well as a process that is understandable for all court users. An accessible court system allows users easy access to find what they need and take the necessary steps without significant cost, delay or barriers. An accessible court system includes options for help for the digitally excluded persons.
Efficient use of available digital services. Self-serve on-demand digital service, digital sharing and access to information offer efficiencies over traditional offline services. Reducing demand for in person or offline services via digital services creates a more efficient and sustainable court system. This includes enhancing existing infrastructure to make content available among government partners.
User-friendly digital environment. As interactions and perceptions continually change, the court systems should be adapted in a way to stimulate the public confidence and trust in it. As pointed here, the digital family court should be built in partnership with and around the needs of those who use it. Building systems that are flexible and adaptable to the response of everyone involved, and having the capability to make rapid change in future in response to feedback, external change, and new ways of doing things can remove barriers of complexity and delay.
Right balance cost efficiency. Good quality of the digital products used. Working efficiently at the right cost for the work being done will bring sustainable funding for the future.
Attention to all professionals involved. In the process of digitalisation often the professionals with supportive functions like social workers, interpreters and translators, experts, mediators and NGO representatives are majorly overlooked. It is vital that the digitalisation is not only aimed at facilitating the work of the judges and the parties; instead a view on every professional participating in the proceedings is the key to ensuring success in the virtual courtroom.
The changes we are making are far-reaching. The deployment of digital technologies should not be seen simply as a means to reproduce the current process or to replace it, but rather as an opportunity to revisit the rationales behind the legal systems and to create new and more efficient ways to address them. The task is to make justice easier, faster, and simpler to access, underpinned by reliable processes, using the best the modern world can offer.
By Nadia Rusinova, LL. M., Attorney-at-law and Lecturer in International/European private law at The Hague University of Applied Sciences, International and European Law Department.