In a previous blog ‘The Almost Digital Barrister’, the assiduous reader will recall that I considered the concept of online digital bundles and templates as a mechanism to reform case management.
Since then, the suggestion has been passed from circuit to the High Court judges, and a number of fellow professionals have asked me about the concept; so now seems the right moment to discuss it in more detail.
My practice these days centres on family law – including public, private and financial matters. This blog will therefore focus on this area, although with flexibility, the ideas should be transferable.
Public law cases
For the uninitiated, ‘public law family cases’ are where local authorities having responsibility to ensure the safety and protection of children, become involved with families in their catchment area. They usually start with a ‘referral’ relating to safety or welfare issues, with the expectation that social services will become involved to support, assist and if necessary intervene in the family.
When intervention is required (often where the local authority is seeking to exercise parental responsibility for a child) an application is issued in the family court and a judge becomes involved. Most cases then enter a 26 week completion window which can be extended if the judge decides this is necessary.
Once an application is issued, the court will convene several essential ‘hearings’ within the 26 week period, designed to case manage the issues through to a final adjudication should it be required.
The process involves a little medieval language. The local authority becomes ‘the applicant’ and the parents and children are ‘respondents’. Where grandparents or other family members are involved, they frequently also become ‘parties’. As often as not, a children’s guardian is appointed to separately represent the interests of the child or children. The ship has been launched.
After this, a host of professionals enter the process with their oars. For the applicant local authority there are the social workers, their managers, contact workers, family support workers, health professionals, school or nursery teachers and sometimes experts such as doctors, consultants, psychologists or substance abuse analysts. Whenever an expert is sought, the court must give its prior approval through a formal application process involving a hearing.
With these professionals come a coterie of solicitors and barristers for most if not all of the parties. In the more complex cases the advocates row in court bristles with lawyers.
The judge that is allocated to manage and resolve the case uses a process that was invented in medieval royal courts. Those that are involved in the case are required to attend before the judge. Legal discussion takes place beforehand – either by advocates conference or in the hour before a hearing. As much information as is then available (and remembered) is shared. The judge gives directions. The parties and their lawyers leave, with the expectation that they will do what they were told, and things will go well.
But, with dysfunctional families, things do not habitually go well. Some engage and succeed, others disengage and fail. Crises arise. Expectations change. Relationships break down. Communication falters and stops.
In the meantime, whilst attention is elsewhere, things get missed, and deadlines not met. On occasions, the whole expectation of weeks previous is lost. When the next ‘hearing’ comes round, the judge is in for a surprise…perhaps a number of the intended objectives have not been realised, and the judge has to re-timetable the case.
Call me simplistic, but as a simple person looking in, it seems to me that the problem is not cured by ‘tweaking’ case management, but needs root-and-branch reform. What is the purpose of bringing together in a court room a bunch of high paid professionals to discuss a case, often in a way that is incomprehensible to the family members involved? And why should these cases remain invisible to judicial scrutiny between the hearings?
The idea of an online digital case management template would go a long way to cure the problems that arise from traditional hearings. It could guide, remind and flag essential matters as they arise, rather than leaving them to a crisis point.
To start with, by using an online process, all of the professionals that need to know about a case would have access to and be guided by the same material in the template. It would be updated with each new event (under the present system often a secret before the hearing). The template can contain automatic digital triggers that require the parties to address and share issues, make decisions, disclose information and problem-solve. At the same time, the judge will be in a position to review the progress of each case at any stage with totally up-to-date information, and to give further directions on the template as to what to do. If a party has a problem with a direction, they could notify this within the template, and the judge could review their concerns. Most importantly, where directions given by the judge have not been actioned, the failure can be flagged.
Rather than pouring vast funds into traditional, and sometimes pointless hearings, why not use public funds more wisely to support the families in need? Yes, any new system will require funding, judges and lawyers will continue to be paid, but substantial savings could result.
On a related topic, the other day I read about a Ministry of Justice pilot of identity cards for lawyers. The idea is that they produce their card from their wallet or handbag and it is scanned by a security officer, allowing them entry to the court building. Contrast this with the average provincial health club where members simply enter automatically with their fingermark.
The Ministry of Justice should recognise that we already have the technology to support reform. Digital templates simply require existing software written for other purposes. It is out there: we just need the will and imagination to use it!