Commissions | 06.04.2020

“Miss Atomic Bomb, you’re going to miss me when I’m gone”

I just love this song by The Killers, it’s so full of life, it’s so vital, it’s so busy, it’s so peopled, it’s so positive, and I often have it playing in the background while I work through this period dominated by COVID-19, doing my best to look after family law clients.

But are lawyers “gone”, like Miss Atomic Bomb, are family lawyers really gone? Is it really the case, as argued by Professor Richard Susskind, that lawyers are merely economic units, that technology is taking over, displacing the lawyer, and that the lawyer as a person who fights for justice doesn’t really exist any longer?

My thesis in this article is that lawyers still do matter, that we are not merely economic units, that we are not being taken over by technology, and that lawyers everywhere in the world are standing up for their clients’ interests, whatever the circumstances and however difficult COVID-19 has made our work.

The fellowship that the Union Internationale des Avocats provides for the members all over the world who are part of it has not only carried us through, but has educated and informed the jurisdictions in which we work.

The family lawyers who are part of the UIA are all members of a WhatsApp group. Yes of course we share happy news, birthdays, the birth of children to our members, jokes and happy occasions to be celebrated.

We also share our experiences, our knowledge of how to deal with things, we share our views and our hopes. 

Our hearts bled for the citizens of Italy, as that country was so badly ravaged by coronavirus and which has witnessed untold tragedies as a result of COVID-19. When this illness was spreading throughout Italy, our family law colleagues from Italy were telling us about their experiences, were talking about how they managed to carry on working during the crisis, were telling us about the cases and how the family law judges tried to carry on working and to dispense justice.

We learned these lessons weeks before coronavirus hit our own countries, we understood the challenges that we would face, and we were strengthened through our shared experience of how to deal with things. This was an international law fellowship operating precisely as one would expect a healthy and vibrant organisation to function.

A feature of the way in which Governments throughout the world have dealt with this crisis has been to impose quarantines, to require families to remain living as a unit within a home. Invariably, the children cannot go to school or university. They too are confined within the homes.

The normal ways in which the family operates have been so restricted. Parks are closed, sporting events have been cancelled. Human beings have been prevented from social intercourse and from mixing with their friends. Concerts have been cancelled.

All of these restrictions place pressure on the family.

Add to that the awful financial consequences of this disease. Stock markets have plummeted, pensions have reduced in value, people’s jobs have come to a sudden end, income has dried up, and everywhere you look you see potential problems, and no sure way out of these financial traps.

This is a cocktail which can lead to an outcome of family disharmony and the need for legal advice as to rights and obligations in so many cases.

So is it really the case that technology provides the answer, or isn’t it more obvious that it’s us lawyers who are more needed than ever to provide legal advice, and appropriate, just and lawful remedies for difficult family problems.

All of this makes more obvious the mental pressures on mothers, fathers and children, so many of whom have seen their planned lives turned upside down, the exams cancelled, the jobs brought to an end, and economic and other pressures weighing so heavily upon them.

• Domestic violence - physical and emotional
The statistics speak for themselves. The stress factors make it so much more likely that there will be incidents of abuse. Physical abuse is easy to understand and will normally now be the subject of recourse to the police, and to family lawyers to provide assistance.
An equally threatening aspect is the emotional abuse, the controlling, the emotional pressure put on a spouse to behave in a certain way inside the confined presence of a family home.

• Financial pressures
The economic climate will make inevitable the need to reduce maintenance and alimony payments in separation and divorce cases, with people having lost their jobs and unable to continue to make maintenance payments for their wives, husbands or children.
How would you possibly be able to value a property now for the purpose of divorce disclosure; what is the property market and how can you possibly put the value on a flat or a house, when you’re not even allowed to leave your own property.
What about the value of your business; who would be interested in purchasing the shares in your business now, what liquidity do you have, and how could anyone value your business if you’re going through a divorce?
What if you’ve just settled the terms of your divorce, and you find that your pension has halved in value, and the assumptions that you’ve made about financing a divorce settlement have to be thrown out of the window and are completely inappropriate now. What kind of remedies do you have?

• Contact to children
How do separated parents during quarantine now arrange for the children to see each parent?
Is it actually physically possible for the children to travel from one home to another? How would the children or parents know that both homes are safe during this time of coronavirus? 

• And what about children who have been abused by their carers, and who may be hospitalised, where are social services now to house those children, and are foster parents really going to be prepared to take children then who may be subject to coronavirus?

• And what about the safeguarding of vulnerable children. So often schools will step in to safeguard the children who are involved in complicated family arrangements. There is no such backstop now. The pressures on local authorities, police and courts are already intense and likely to be strained to near breaking point.
I ask these questions rhetorically, because it is totally obvious that a family lawyer is needed more than ever to provide solutions to these questions. Governments and legal aid authorities please note!

Society would indeed miss family lawyers if we were “gone”.

The family lawyer is going to be busier than ever in advising clients how to deal with all of these different circumstances.

Will the state help us? What methods will we have to resolve our clients’ problems?

• Courts
All courts in England and Wales are in effect closed, and the assumption is that no court hearings will take place in a courtroom in front of a judge. instead, courts will deal with cases using whatever tools of technology may be available, including for example video technology, telephone or email.

Us members of the UIA find that our colleagues‘ experiences in other countries is equivalent.

There is a serious concern here is that individual countries, weighed down with the economic damage of coronavirus, will use this time as an excuse to close physical courts, to stop hearings in front of judges, to dismiss court staff, and to require hearings in the future to take place by remote means, whether by video, audio or email.

Many people, especially people with money, have happily embraced technological ways of conducting hearings in this manner.

But what about clients who don’t have any money, who don’t have lawyers, who don’t have access to the Internet? What kind of justice are they likely to find in the circumstances, and how can they obtain just outcomes to their family law cases?

If you are rich enough to have a court hearing, or a hearing in front of a private judge, conducted by video technology, how can you be sure about the confidentiality of the means of communication? Are the hearings which you have conducted by Zoom technology really confidential, or can someone hack in and find out the particulars of the family Court law case which is being transmitted.

And if you do have a hearing conducted by video technology, how will the judge perceive the honesty of the witness; can justice really be done in remote hearings? Judges are on record saying that vulnerable children needing state protection and intervention will not be well served by remote hearings. There are strong arguments both ways, already.

• Mediation
The coronavirus problems have made more obvious the fact that family law clients should be attempting all possible ways to solve the family law differences. Most obviously, they should be thinking about mediation. Nowadays, it is obviously possible to have mediation online.

But how are people who don’t have money going to be able to pay for this?

• Arbitration
Arbitration is beginning to replace formal court hearings in England and Wales, and coronavirus will provide impetus to encourage the arrangement of arbitrations in our cases. Our clients will want to arrange arbitrations with qualified arbitrators, to replace court hearings.

The same point about affordability is relevant here. Rich people can obtain justice easily; but if you haven’t got any money, how can you afford a private arbitrator?

In this paper I have shown how coronavirus has increased the temperature of the pressure cooker within families. There will be more and more occasions when the advice of the family lawyer will be required.

The state can attempt to provide means to resolve these cases, and anyone with money will be able to invest money in obtaining a solution using technology, mediation and arbitration.

What is abundantly obvious from my survey of this field is that there is an obviously increased need for good lawyering to protect freedoms and justice.

Society would indeed miss lawyers if we were gone.

But we are not economic units, we will stand up for fair solutions wherever in the world we work. We will never go away.

See you down the road.

Simon Bruce
UIA Family Law Commission
Farrer & Co

London, United Kingdom