Lucia Clark: Family law is changing whether we like it or not
The pandemic has forced separating families, and their lawyers, to work very differently over the past 18 months. Compounded by Brexit and general economic uncertainty, the future for family law, and those couples and families affected by it, may be unrecognisable by the end of the next decade, compared to the start of 2020.
The past month has been something of a time to take stock, with two reviews, looking back and looking forward. The first is the consultation on mode of attendance at court hearings, with views from court users sought by the Scottish Civil Justice Council; it ended on 15 November, with 82 responses received. The second is the Family Justice Briefing 2021, commissioned by Resolution (the association of English family lawyers) and also published on 15 November. Both the consultation responses and the briefing make for interesting reading, particularly for those inclined to speculate about future changes in the legal world.
The consultation asks how much court business in non-criminal cases should stay online, and how much should revert to in-person hearings – in short, is “Zoom court” here to stay? The proposed rule changes would provide a presumption for in-person hearings in some cases, and virtual hearings in others. This has prompted some trenchant responses from the legal profession, mainly in favour of in-person hearings for any substantive hearing. Family cases are, however, less affected than other categories of court business, with the” default” proposed to remain in person hearings, other than certain procedural matters.
The question remains whether this is indeed the correct balance, in particular between the interests of justice and efficiency. remote hearings can be more productive; geography is no longer an issue; and setting out arguments in writing beforehand can focus and narrow the issues. On the other hand, the same requirement for everything in writing can frontload costs, and technology can be a frustrating barrier rather than an aid.
I think in almost every video call I’ve made over the last 18 months (and surely I’m not the only one?) someone, at some point, has had to say to someone else “You’re on mute”. Virtual court is no exception to the rule where muting and unmutings tilts the flow of advocacy, without even getting into the difficulties of ensuring effective participation by parties and witnesses.
The Family Justice Briefing from England starts with the expectation that the “business of justice” will move more online going forward. This Briefing is written against a background of English family law, which is considerably more discretionary than Scots family law, and so, in my view, leads to more cases in court, with more costs – but there are still lessons for Scots lawyers. The stated aim is for family law services to be “simple, affordable and accessible” and a variety of possibilities are mooted as to how that might be met. First, a blended and flexible service between professionals and online tools. Secondly, it suggests different levels of service to meet different needs. Thirdly, it speculates whether there may be demand for one lawyer to work with both spouses – currently, this would be classed as a conflict of interest; but should that rule remain in the future, if couples see this as a way to reach a solution with less cost and less conflict?
For now, Scottish couples have a number of options. They can engage in mediation, where the lawyer-mediator works with the couple to help them find their own solution. Arbitration can allow for decision-making without involving the court. And for those for whom court is the best option, effective project management and fee scoping can ensure that these remain clear, whether hearings move to virtual or stay in-person. Family law is changing, along with most of the way the world worked pre-pandemic – whether we like it or not.
Lucia Clark is a partner at Morton Fraser. This article first appeared in The Scotsman.