Transforming our justice system: Resolution’s response to the Ministry of Justice

We are responding to the consultation questions relating to Assisted digital and Impacts in relation to that.

Question 1: Do you agree that the channels outlined (telephone, webchat, face-to-face and paper) are the right ones to enable people to interact with HMCTS in a meaningful and effective manner? Please state your reasons.

We await with interest the wider and specific proposals in relation to family proceedings (referred to in Chapter Four) and look forward to responding to those in due course.
We are working with HMCTS around allowing divorce applications, and other types of family proceedings processes in due course, to be made and managed online and are committed to
working together to seek to make the reforms work. We are currently unclear as to the intended extent of use of digital access, if any, for emergency protection applications, such as for domestic
violence injunctions, and would welcome the opportunity to discuss this further with the MoJ/HMCTS.

We understand that it is assumed that there will be no change to primary legislation to support the move to an online divorce process. This is a missed opportunity. As well as bringing other benefits for divorcing couples and their children and the family courts, the online divorce process would be simplified further and be simpler for people, especially those without legal support, to manage and use with the removal of fault. We can help with this.

With the proposed shift to accessing justice digitally, we welcome the paper’s recognition that not everyone will be able to engage with new online processes and of the need to take steps to provide
support to interact with the new system. We strongly agree that a one-size-fits-all approach is not appropriate, including for those accessing the family courts. Public and private family law consumers are a distinctive group with their own respective needs – they clearly have different needs to say small businesses.

The number of litigants in person, especially in the family jurisdiction, with 50,000 people representing themselves in family disputes in 2013, has of course increased since the LASPO reforms. It is estimated that across the UK, when engaging with government services, only 30% of the general population are ‘digital self-servers’. It would be helpful to have more sector specific information on estimates around the current use of digital services, specifically for the population using the family courts around how many are already using government digital services, how many are ‘digitally excluded’ and how many can be ‘digital with assistance’. Whilst some figures are presented around the married or civil partner population, the family court user population clearly includes those with multiple problems, on low income, vulnerable parties and witnesses, child applicants and adults aged over 65.

We consider that all the intended channels to assist digital access will have their place as a one-sizefits-all approach is not appropriate. Those categories of people listed above and involved in family cases are likely to have particular preferences and needs, including protective needs, around use of different channels. This requires thorough exploration and analysis to ensure that no one  is left behind.

Ongoing MoJ learning around the development of the Family Justice Out of court pathway around designing for users in emotionally difficult situations, and the ability to talk to a human in the
process, should be taken into account.

We would be very concerned if access to paper channels was not included or removed. We note that paper channels in fact means adding a ‘data entry and scanning’ layer to the process. There appears be no analysis of how in practice this will affect especially making timely emergency applications to the family courts. Nor of how to avoid those vulnerable family clients who may be more likely to want or need to make a paper application, rather than engaging digitally, being disadvantaged in any way.

A paper facility should also and always be part of a robust system to prevent injustice (papers needing to be filed on a particular day and online systems not working).

We trust that there will be facility to support saving and printing both part completed, draft and completed forms. For example, to allow opportunity to seek legal advice ahead of petitioning the court and/or to seek to agree the contents of a divorce petition with the other party in advance, thus avoiding delay and unnecessary conflict after commencing the divorce process.

What third parties are envisaged might be contracted to provide the Assisted digital service? It will be vital for both consumers and providers to understand the role and limits of the role of third party contracted Assisted digital providers and potentially unregulated private Assisted digital services provided by non-legal services. In particular, for consumers, who may be in crisis, to understand what they are ‘buying’ and whether they are protected. It is difficult not to envisage questions being asked requiring responses which stray into the realm of legal advice as forms are completed, or people directly asking for legal advice to support their application.

There is a significant difference for the consumer between i) receiving assistance to fill out a form and navigate an online process, perhaps with some legal information, and ii) receiving legal advice, such as pre-proceedings family law advice, or about what are still legal processes, from an unregulated source providing no protection for the consumer rather than from a regulated
professional.

Question 2: Do you believe that any channels are particularly well suited to certain types of HMCTS service?

In the family courts, we consider that all the intended channels to assist digital access will have their place as a one-size-fits-all approach is not appropriate. We support thorough piloting and testing linked to different types of service and the different types of user of those services.

Question 9: Do you agree that we have correctly identified the range of impacts, as set out in the accompanying Impact Assessments, resulting from these proposals (Assisted Digital)? Please state your reasons.

It would be helpful to have more sector specific information on estimates around the digital ability for the population using the family courts. Public and private family law consumers are a distinctive group with their own respective needs.

There is no assessment of any impacts for those cases relying on the data entry and scanning service. Measuring the minimum paper channel needed and the impact of retaining a true paper channel, processed for those who need it alongside the digital access channel, should at least be considered. We recognise that some people may choose to be ‘litigants in person’ for a variety of reasons and that as some people become more digitally self-sufficient they may choose to carry out proceedings themselves. However, the fact that litigants are digitally self- sufficient or have digital assistance is not a substitute for legal advice (which may keep separating couples and families out of court) and representation where that is needed.

The impact of receiving out of scope and wrong advice from an unregulated Assisted digital provider is not discussed. Equally, whilst there is reference to Assisted digital services making court users more aware of the support available elsewhere, the impacts on Assisted digital providers asked questions requiring legal advice and how people can be assisted to reasonably access that tailored, specialist advice, are not really addressed.