The legal professional press displayed a somewhat carping tone in stories this week about plans to implement online filing in divorce cases. In Transforming Our Justice System, the Ministry of Justice has committed itself to a programme which will leapfrog England and Wales into world leadership of the drive for online filing, processing and determination. All this from a base where many practitioners currently find court wi-fi a bit dodgy. A degree of scepticism on performance may well be in order. However, the most likely problems will be too rushed an implementation; too little recognition of the needs of litigants in person; inadequate investment after the initial burst of enthusiasm; and a failure to think through consequences. On its plans for online divorce proceedings, the Ministry of Justice’s PR machine got bounced on what, if it had been agile enough, should have been good news with interesting implications.
The headlines included ‘Government Silent on Paperless Divorce Timetable’ (Law Society Gazette) and ‘Full Digital Divorce Process ‘Won’t happen anytime soon’ (Solicitors Journal). Some of the edge may have been exacerbated by the fact that the source appears to have been a well-informed family solicitor, Tony Roe, rather than the Ministry of Justice’s PR machine. According to the Solicitors Journal, Mr Roe discovered what was planned through a series of Freedom of Information requests. The online approach will be piloted; appropriate practice directions approved; and centralisation of administration implemented so that one court, Bury St Edmunds, will become the divorce centre for London and the South East. The Gazette reported Roe as saying ‘At best only the petition may be available to complete online by the end of the summer, possibly. The government’s “agile methodology” approach to projects apparently means that new processes are built bit by bit, starting with the petition in this case … we need to … await the modernisation programme which seems likely to occur step by step, starting with a likely pilot, a practice direction and only then the first digital petition’.
All you can say about the Ministry’s proposed methodology as recounted by Mr Roe is that it seems to be exemplary. The trouble is that the Ministry’s PR machine seems to have been caught somewhat on the hop. The Gazette reported it as lamely mouthing that ‘announcements on the ministry’s plans will be made in due course’. Come on. Get a grip. Maybe everyone was away over New Year but that is a pretty feeble response even from a press department piqued that someone had the effrontery to bypass it by using the Freedom of Information Act. And the Ministry certainly needs to be more open about its plans if it wants to convince us that it is capable of carrying them through.
There remain, of course, a host of interesting implications raised by this potential use of technology. Bury St Edmunds is a market town about 80 miles north east of London. If chosen as the matrimonial base, will specialist matrimonial judges be expected to relocate there – and will they be prepared to do so? Even more intriguingly, if the divorce process is automated, will this bring pressure to change the substantive law? Lord Mackay, a couple of decades ago, was the last Lord Chancellor to broach legislative change to no fault divorces instead of the current convoluted mix of fault and the effluxion of time. Despite his impeccable credentials as a genuine devout Protestant of near unbounded Scottish purity, he was seen off by the religious lobby. Will technology succeed where the best Minister of Justice of modern times failed? That really would be a success for which most family lawyers, including their representative body Resolution, have been arguing for some time.