The press love a story about out of touch judges – think ‘Who are The Beatles?’.

And so with this headline in the Mail Online : ‘Technophobe’ judges delay £1.2bn justice system reforms as plan to use new software in family court hearings is dropped

It appears that this story derives from a misunderstanding of a guidance document published this week by the President of the Family Division concerning orders in children cases (See here). Anyone who works in the family justice system would have been able to tell the Mail that their story was both muddled and unfair.

First of all the broader context : There is a reform programme which involves plans for the court process to be revolutionised by new technology, online hearings etc. There has been a judicial consultation called ‘judicial ways of working’, and it is fair to say that there has been some skepticism and resistance to the programme both from some judges and some lawyers – not so much because of principled resistance to new ways of doing things, but because there has been a sense that the reform programme was driving ahead, selling off the court buildings needed to host physical hearings before the technology was ready to reliably transfer to virtual ones – and because many take the view that justice really does need to be conducted eye to eye, particularly for the vulnerable or unrepresented.

Part of the reforms have been about new hardware and software to enable judges to work digitally and to conduct hearings by phone or link. If you visit courtrooms these days many judges will have two screens in front of them (skilfully placed so as to block their view of witnesses and advocates) but on which they can view electronic bundles and check digital court files. If they work. Or if the judge has been trained to use them. Or if there is an electronic bundle to view in the first place. In a system where court wifi is only just online (and still not available in many courts), where the video link is more likely to drop out than work without problem, this is very much a work in progress.

So where does the guidance fit in?

The guidance relates only to the Family Court and is not about hardware, software or new technology. It is about the drafting of orders. Over recent years guidance from the (former) President of the Family Division has led to an increasing amount of time being spent by lawyers and judges drafting lengthy orders which recite a raft of information according to various templates. This guidance largely liberates professionals from the strictures of such templates in order to free up time at a moment of crisis due to ever rising workloads. Although the guidance reads as if it is mainly judges who are doing the leg work of drawing up these lengthy orders the reality on the ground (from which the President is far removed) is that the majority of orders (in cases involving lawyers) are drawn by lawyers on their own time. It is only in areas where legal aid is very restricted (disputes between parents about things like contact) and where there are very few lawyers, that judges are having to draw up their own orders.

For whoever draws the orders, they are onerous and time consuming, and although the introduction of templates was intended to assist and to save time the reality (as anyone who has ever drafted one will tell you) is that working through a template and adjusting, adding and deleting, and completing required information regardless of relevance, can be significantly less efficient than just starting from scratch. The templates require an advocate to go through multiple paragraphs inserting the answers to various questions, repetitively hearing after hearing after hearing.

According to a report by the most senior family judge, Sir Andrew McFarlane, [judges] prefer ‘a more laborious method’ of producing judgments. …Some may even cling to producing handwritten rulings. 

We’ve already established that the templates are themselves laborious, but the guidance is nothing to do with judgments (and we note in passing that whilst some judges do hand write judgments we don’t think the reform programme includes any compulsory training for judges to enhance their typing skills). What the guidance actually says is that :

…many judges and practitioners are not using electronic templates or programs and are, instead, preparing lengthy narrative orders in each case by a more laborious method with the result that the preparation of orders is now taking more time rather than less.

Although you would not know if from the Mail Online’s piece, there is no new software that has been offered and rejected. What there is is a massive zip file full of long word documents with multiple formatting glitches, which have to be cut and shut to fit the needs of the case. These templates are no more sophisticated than word documents containing numerous sample paragraphs and colour coded instructions, which require deletion and adjustment. Helpfully, the templates have special hidden features which mean that if you attempt to insert or remove a paragraph or touch the formatting in any way your document will go rogue, either by changing the font or font size to something illegible for a paragraph or two, by shunting whole passages off the side of the page, or by utterly messing up the numbering. Everyone hates them because they are poorly done. They aren’t even saved in .dot template format. They don’t use macros to auto-populate certain boxes (such as the names of the parties wherever they occur). They are just text. To be cut, pasted and shuffled. Hence they are a burden that increases stress levels and inefficiency, not some sort of magical labour saving new technological solution.

However, the Mail say that

[judges] have proved unwilling to adopt new software designed to speed up thousands of legal cases deciding the future of children.

The abandonment of the template regime is nothing to do with a refusal to use software. Software would have been lovely but it hasn’t been provided, as the last line of the guidance acknowledges :

The ultimate goal remains… for court orders eventually to be drawn with ease from an electronically supported system once such systems are widely available.

So, when the Mail repeatedly refer to ‘new software’ for the production of orders (and judgments) and say that :

The attempt to persuade family court justices to adapt to the latest technology has now been dropped, in a major setback to the £1.2billion reform scheme.

they are just simply incorrect. The problem here is the technology and resources provided not the out of touch personnel. Even if it were true that judges had stuck two fingers up at fantastic new software offered to them, a setback in the efficiency with which orders are drafted in family cases is hardly a ‘major setback’ to the wider reform scheme across all civil and family justice, in the context of far more pressing difficulties such as the repeated crashing of various whole systems that the justice system depends upon.

Perhaps the worst inaccuracy by The Mail is this assertion :

Because of the failure to use the new software, cases are taking too long, he said.

The President does not say anywhere in his guidance that cases are taking too long as a consequences of judicial inaction, and he certainly doesn’t say its because judges aren’t using available software. What he says is that judges are spending too long drafting orders, and that is time that can be ill afforded because of the ever increasing caseload that the family court is struggling to deal with.

Finally, a reminder to Mail Online’s stock image department that even the most technophobe of English judges don’t use gavels!

Feature pic : Gavel by Andrew Scott on Flickr – creative commons – thanks!